SESSION AI MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the “Agreement”) is executed as of the last date executive by the Parties hereto (the “Effective Date”) by and between Session AI, Inc., a Delaware Corporation (“Session AI”), and the Party countersigning this Agreement (“Customer”), each a “Party” and collectively, the “Parties”.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants, agreements, and obligations set forth in this Agreement, the parties agree as follows:
(a) “Application” means a software web services application offered to the Customer over the Internet that includes certain machine learning functions that have been designed specifically for real-time interaction with consumers. The Application is located at https://cloud.sessionai.com, and includes all modifications, customizations, enhancements, revisions, updates, upgrades, and documentation that Session AI may make available periodically.
(b) “ServiceCustomer Data“ refers to data, materials, curriculum, or other information in electronic form (i) input by or collected from Customer through or in connection with the Service, or (ii) generated by Session AI or the Service from data submitted or on behalf of Customer.
(c) “Intellectual Property Rights” means any and all registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
(d) “Permitted Users“ means any employee of Customer that is granted user access credentials to access the Service that has agreed to be bound by and adhere to the Acceptable Use Policy set forth in Section 9.
(e) “Service(s)” means, collectively, the subscription to the Application, along with any Implementation Services, Managed Services, and additional services as may be listed on the applicable Service Order.
(f) “Service Order” means the detailed statements of Services to be provided hereunder and the related fees, and other details as agreed upon by the Parties, in substantially the form attached hereto as Exhibit A. Each Service Order, when executed by each Party hereto, shall be incorporated herein. If any conflict exists between any term of this Agreement and any term contained in a Service Order, the terms in this Agreement shall govern, unless the Service Order specifically references such conflict and indicates the Parties’ intent that the conflicting term in the Service Order shall govern, in which case the Service Order shall govern as to such referenced conflict only.
(g) “Term” means the Initial Term (defined below), as extended by any Additional Terms (defined below) in accordance with the terms of this Agreement.
2. Service Subscription.
(a) Grant. Session AI hereby grants to Customer and its Permitted Users a nonexclusive, enterprise-wide, no sub licensable, not transferable subscription right to use the Application during the Term for Customer’s own business purposes. Nothing in this Agreement shall in any way limit the ability of Session AI to offer access to and use of the Services to any other party.
(b) Limitations on Subscription. Customer shall not be granted any rights to the Application beyond that which is specifically provided for herein. Customer acknowledges that at no time shall it be entitled to download, distribute, install, transfer, or otherwise redistribute the Application in any form not explicitly covered by this Agreement. At no time will Customer hold title to or ownership of the Service, any component of the Application, or source code or any materials provided to Customer by Session AI during the Term of this Agreement.
(c) Additional Services. From time to time, Customer may request that Session AI perform various additional services, including consulting services (the “Additional Services”) for Customer. Customer and Session AI shall enter into a written statement of work, work order or other written agreement regarding such Additional Services prior to commencement thereof and such written statement of work, work order or other written agreement shall incorporate the terms of this Agreement by reference.
3. Materials, Software, & Intellectual Property.
(a) Intellectual Property in General. Session AI retains all right, title, and interest in and to the Services, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including, without limitation, all software used to provide the Services and copyrights, patents, trade secrets, trademarks or trade names therein or created thereby, and this Agreement does not grant Customer any Intellectual Property Rights in or to the Service or any of its components, including, without limitation the Application, and all designs, algorithms, models, processes, methodologies incorporated in, and any improvements, modifications and enhancements to, the Application.
(b) Ownership of Customer Data. Without limiting the foregoing, Session AI recognizes and agrees that: (i) the Customer Data is the sole and exclusive property of Customer or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Session AI does not acquire any Intellectual Property Rights, or any other right, title, or interest in or to the Customer Data except the limited and temporary right to use them as necessary for Customer’s use of the Service, e.g., having curriculum deployed within the Application.
(c) Additional Services Performed by Session AI. Session AI shall own any intellectual property created through the performance of Additional Services by Session AI under this Agreement. For any such intellectual property created by these Additional Services Session AI grants Customer a nonexclusive license during the Term to use such intellectual property for the limited purposes of contemplated by this Agreement. Any such license shall be terminated at the time of the termination of this Agreement.
4. Session AI Obligations.
(a) Hosting. Session AI shall, at its own expense, maintain the Application on one or more computer network servers (any such servers, collectively, the “Application Server”). Session AI shall bear sole responsibility for the operation and maintenance of the Application Server hardware, its operating system and/or its platform software, and any third-party application software associated with, or necessary for, the operation and functioning of the Application Server in accordance with this Agreement. Session AI shall be permitted to enter into an arrangement with one or more third parties (each, a “Third Party Host”) for the performance of Session AI’s obligations under this Section 4, whereby any such Third Party Host may install the Application, own, operate or maintain the Application Server, or undertake to manage the Application Server.
(b) Service Levels and Support. Session AI shall provide support services in connection with the Application, and ensure that the Application meets the service levels.
(c) Security. At all times during the Term, Session AI shall be responsible for the security of the Application and shall make reasonable commercial efforts to provide physical and information security standards in connection with the Service than meets generally accepted industry standards for physical and information security.
5. Term and Renewal. The initial term of this Agreement shall begin as of the Effective Date and, unless sooner terminated pursuant to the provisions of Section 7, shall be in effect for the period set forth on the Service Order (the “Term”). Any subsequent renewal of the Order will be subject to the negotiation and agreement of the Parties.
6 Payment Provisions.
(a) Payment Amounts. As consideration for Session AI’s performance under this Agreement, Customer shall pay to Session AI the amounts set forth on the applicable Service Order.
(b) Yearly Payments. Except as otherwise set forth in an applicable Service Order, fees for the Services for each twelve (12) month period (each, an “Annual Period”) and outlined in the applicable Service Order, shall be invoiced to Customer in advance prior to the beginning of such Annual Period.
(c) Additional Work Payments. Amounts owed for Additional Services shall be paid in the terms outlined in the applicable Service Order.
(d) Taxes. All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights in the Application to Customer, or the delivery of related services.
(a) Mutual Termination Rights. This Agreement shall terminate (i) at the end of the current Term, after proper notice given by a terminating Party pursuant to Section 5, or (ii) at any time upon mutual agreement in writing by Session AI and Customer.
(b) Termination by Session AI. Session AI may terminate this Agreement by sending written notice to Customer upon the occurrence of any of the following events:
(i) Following notification by Session AI of a late payment due under Section 6, Customer fails to make a payment within 15 days thereafter;
(ii) Customer or any user Permitted User continues to violate Session AI’s Acceptable Use Policy, or another party other than a Permitted User accesses the Service through the user credentials issued to Customer;
(iii) Customer fails to comply with any material term of this Agreement within 15 days following notification by Session AI of such failure to comply; or
(iv) Appointment of a receiver or the filing of any application by Customer seeking relief from creditors.
8. Customer Duties.
(a) Cooperation. During the Term, Customer agrees to provide reasonable access to users for questions, feedback, testimonials, and other publications Session AI may desire.
(b) Restriction of Access. Customer shall restrict access to the Service to Customer’s Permitted Users and ensure compliance by all Permitted Users with the Acceptable Use Policy. Customer shall promptly report to Session AI any known violation of the Acceptable Use Policy by its Permitted Users or any access to the Service by anyone other than a Permitted User.
(c) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer or a Permitted User in connection with the Service; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (the “Customer Systems”); (iv) the security and use of Customer’s and its Permitted Users’ access credentials; and (v) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Permitted Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from and all conclusions, decisions and actions based on such access or use.
(d) Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Customer shall not, and shall not assist any other person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person) for employment or engagement as an independent contractor any person then employed or engaged by Session AI. In the event of a violation of this Section 8(d), Session AI will be entitled to liquidated damages equal to one-year of salary of such individual (based on the highest salary in the last three years). The Parties acknowledge and agree that any breach of this Section 8(d) will cause injury to Session AI for which money damages would be inherently difficult to quantify or ascertain and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages. Notwithstanding the foregoing, Customer shall not have any liability under this Section 8(d) in the event such hire was the result of a general solicitation through the public domain.
9. Acceptable Use Policy. The obligations set forth in this Section constitute the “Acceptable Use Policy” with respect to use of the Application by Customer and any Permitted Users.
(a) Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity that accesses the Services using Customer’s or its Permitted Users’ access credentials, whether or not such person or entity is a Permitted User. Customer shall not, and shall not permit any other party to, or attempt to: (i) use the Services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Application is compiled or interpreted; (iii) violate or tamper with the security of the Services; (iv) modify the Application or create any derivative product or service from any of the foregoing; (v) or act as a service bureau of the Services or otherwise run the Application or access the Services for any unlicensed third party; or (vi) use, or encourage, promote, facilitate or instruct others to use, the Services or for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive.
(b) Compliance. In the event of Customer’s material breach of the Acceptable Use Policy, including without limitation any copyright infringement, Session AI may suspend or terminate Customer’s access to the Service, in addition to such other remedies as Session AI may have at law or pursuant to this Agreement. Neither this Agreement nor the Acceptable Use Policy require that Session AI take any action against Customer or any other customer for violating the Acceptable Use Policy, but Session AI is free to take any such action it sees fit.
10. Reciprocal Disclosure of Confidential Information. The Parties anticipate that each may disclose confidential information to the other. Accordingly, the Parties desire to establish in this Section terms governing the use and protection of certain information one Party (“Disclosing Party”) may disclose to the other Party (“Recipient”).
(a) For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of the Disclosing Party business which is not generally known and which the Disclosing Party wishes to maintain as confidential. Confidential Information also includes all information of which the unauthorized disclosure could be detrimental to the interests of the Disclosing Party. By example, and without limitation, Confidential Information includes any and all non-public information that relates to the actual or anticipated business and/or products, research or development of the Disclosing Party, or to the Disclosing Party’s technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Disclosing Party’s products or services and markets therefor, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by the Disclosing Party either directly or indirectly in writing, orally or by drawings or inspection of premises, parts, equipment, or other Company property.
(b) Recipient may use Confidential Information of Disclosing Party only for the purposes of fulfilling its obligations and exercising its rights under this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees, consultants or representatives (collectively, “Representatives”) who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. Recipient shall ensure compliance with this Agreement by all of its Representatives and will be responsible for any breach of this Agreement caused by its Representatives.
(c) The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Disclosing Party; or (iv) is independently developed by Recipient without use of or reference to Confidential Information.
(d) Recipient further agrees that it shall:
(i) immediately notify Disclosing Party of any breach of this Agreement or any other disclosure of Confidential Information not authorized under this Agreement (collectively, an “Unauthorized Disclosure”); and
(ii) without limiting any remedies available to Disclosing Party, fully cooperate with the Disclosing Party to regain possession of the Confidential Information, prevent its further unauthorized use or disclosure, and limit and mitigate the damage of such Unauthorized Disclosure.
(e) If Recipient or any of its Representatives is required by a valid legal order to disclose any Confidential Information, Recipient shall notify Disclosing Party of such requirements so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy, and Recipient shall reasonably assist Disclosing Party therewith. If Recipient remains, in the opinion of counsel reasonably acceptable to Disclosing Party, legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
(f) Following the termination of this Agreement, Recipient shall (a) at Disclosing Party’s discretion, promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession other than Notes, (b) destroy all Notes, and (c) within 10 days after Disclosing Party’s request, provide Disclosing Party with a certificate confirming Recipient’s compliance with this Section 10. Notwithstanding the foregoing, Recipient may retain copies of Confidential Information that are stored on Recipient’s IT backup and disaster recovery systems until deleted in the ordinary course. Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
11. Representations and Warranties.
(a) Representations and Warranties Generally. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; (iii) that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
(b) Representations and Warranties of Customer. Customer further represents and warrants (i) that it has the right, and any necessary Intellectual Property Rights necessary to disclose and provide to Session AI any Customer provided through use and access of the Application; and (ii) that Customer’s use of and access to the Application complies with applicable laws and regulations.
(c) Disclaimer. Except for the express warranties specified herein, the Services are provided “as is” and “as available”, and Session AI makes no warranties, either express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement or data accuracy. Session AI does not warrant that the operation of the Application will be uninterrupted or error-free, or that all errors will be corrected.
(d) Essential Basis of the Agreement. Each Party acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different
(a) Indemnification by Customer. Customer will indemnify, defend, and hold harmless Session AI, its licensors, service providers, and their respective affiliates, managers, directors, shareholders, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fees, arising from use of the Services or breach of any obligations under this Agreement.
(b) Notice and Defense of Claims. With respect to a claim entitled to indemnification under Section 12(a) above, a Party seeking indemnification under this Section 12 (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of any claim for which it believes it is entitled to indemnification. The Indemnifying Party shall assume control of the defense and settlement of such claim provided that (i) Indemnified Party promptly notifies Indemnifying Party of any such claim in writing (but a failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party or the defense is prejudiced by such failure), (ii) the Indemnifying Party is given sole control over the defense and settlement of such claim at its sole cost and expense, provided, however, that the Indemnifying Party will not settle any third-party claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim without payment or admission of fault by the Indemnified Party, unless the Indemnified Party consents to such settlement, and that (iii) the Indemnified Party will have the right, at its option and expense, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. For the avoidance of doubt, should the Indemnifying Party refuse the opportunity to have sole control of the defense of the claims, and should the Indemnified Party be obliged to conduct the same, then any reasonable related attorneys’ fees and costs shall be covered by this Section 12.
(c) Limitations and Exclusions of Liability. Other than instances of gross negligence, or willfully malicious conduct, neither Party will be liable to the other for any incidental, indirect, special, consequential (except for consequential damages arising from a Party’s indemnification obligations hereunder) or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a Party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. The cumulative liability of Session AI to Customer for all claims arising from or relating to this Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the total amount of all license fees paid to Session AI by Customer during the twelve (12) months prior to the event giving rise to liability hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
13. Notices. All notices by either Party shall be in writing and shall be sent to the other Party at the addresses shown on the signature page hereto by United States Certified Mail, postage prepaid, return receipt requested or by Federal Express or other similar nationally recognized courier, or by email, and such notices will be deemed effective upon actual receipt or rejection.
14. Third-Party Sites, Products, and Services. Session AI is only responsible or liable for the content posted on the Application to the extent created by Session AI. Customer agrees, Session AI is not responsible for the content of other users of the Application. The Application may contain links to external Web sites. Session AI will not be responsible for the contents of any linked Web site, or any changes or updates to such sites. Customer further agrees that Session AI will not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog or any other location on the Application, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content
(a) Amendment. This Agreement may not be amended except through a written agreement executed by an authorized representative of each Party. Notwithstanding the foregoing, Session AI may amend the Acceptable Use Policy at any time by posting a new version at its website and sending Customer notice thereof.
(b) Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent nor partner of the other and neither may bind the other in any way.
(c) No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(d) Force Majeure. Except for Client’s obligations to make payments as set forth in this Agreement and each Party’s obligations related to confidentiality, each Party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend such dates for a period equal to the duration of such events.
(e) Assignment & Successors. Session AI may assign this Agreement or any of its rights or obligations hereunder without express written consent from Customer. Customer may not assign this Agreement without the prior consent of Session AI, which consent may be withheld by Session AI in its sole discretion. Any attempted assignment in violation of this Section shall be null and void. This Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties.
(f) Choice of Law & Jurisdiction. The laws of the State of Delaware shall govern this Agreement without reference to its conflict of law principles. All claims under, or otherwise with respect to, this Agreement shall be brought and maintained in the state and federal courts located in the state of Delaware and the parties hereby expressly consent (and waive any right to otherwise object) to the exclusive venue and jurisdiction of such courts. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement. Client shall comply with all United States and foreign export control laws, executive orders or regulations applicable to its performance under this Agreement.
(g) Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(h) Reference and use of Customer logo. Customer agrees to provide Session AI use of its logo and Customer description for marketing material as permitted by law. Additional Customer feedback and input on case studies or marketing material will be provided as reasonably requested by Session AI.
(i) Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communications.