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BROADBEAN TERMS AND CONDITIONS
LAST UPDATED: June 26, 2024
MASTER TERMS AND CONDITIONS
These Master Terms and Conditions (“Terms and Conditions”) apply to any Order
Form related to the Services (as such capitalized terms are defined herein
below) that references these Terms and Conditions.
1. Order Form; Controlling Terms. For purposes hereof, “Order Form” shall mean
the order form, subscription form, statement of work or other written
document that evidences the purchase by a customer (“Customer”) of Services
from any of Broadbean Technology Limited, a limited company incorporated
under the laws of England and Wales, Broadbean, Inc., a Delaware
corporation, Veritone Australia Pty Ltd (f/k/a Broadbean Technology Pty
Ltd), a limited company incorporated under the laws of Australia, or
Veritone France S.A.R.L., a limited liability company organized under the
laws of France, in each case, as applicable (“Company”), either directly or
through an authorized reseller of Company. The “Services” means the specific
applications and services provided to Customer by Company, including through
the access and use of the platforms and applications provided by the Company
(the “Platform”), as applicable. The software components of the Platform and
associated Services are referred to as “Software.” The specific types and
volumes of Services, fees and payment terms, and the term of the Services
shall be as set forth in an Order Form. An Order Form may also contain other
Service-specific terms and conditions. In the case of an Order Form entered
into directly between Company and Customer (including where procured on
behalf of or offered as part of a bundled solution to end users (each, an
“End User”)), (a) such Order Form shall be governed by and incorporates
these Terms and Conditions, collectively referred to herein as this
“Agreement”; (b) in the event of any conflict or inconsistency among the
terms and conditions set forth in such Order Form and in these Terms and
Conditions, the rights and obligations of the parties shall be interpreted
based on the following order of priority: (1) the Order Form and (2) these
Terms and Conditions; and (c) this Agreement constitutes the complete and
exclusive agreement between Company and Customer with respect to the
Services, superseding and replacing any and all prior agreements,
communications, and understandings, both written and oral, regarding such
subject matter, and no additional or different provision contained in any
purchase order form, order acknowledgment form, invoice or similar form of
either party will be effective. In the case of an Order Form entered into
between Customer and an authorized reseller of Company, such Order Form
shall be governed by and incorporates these Terms and Conditions,
collectively referred to herein as this “Agreement” and represents the
agreement between Company and Customer governing the Services being
purchased by Customer from such reseller under that separate Order Form, and
Customer acknowledges and agrees that Company is an intended third-party
beneficiary of such Order Form with respect to this Agreement and,
therefore, may enforce its rights hereunder directly against Customer.
2. Term and Termination.
a. a. Term. The term of an Order Form is the period of time that begins on
the Order Start Date and will continue until the Order End Date, both
dates as specified on the Order Form (the “Initial Term”), unless
sooner terminated in accordance with the terms of this Agreement. The
term of these Terms and Conditions and the Agreement shall continue as
long as an Order Form referencing or incorporating these Terms and
Conditions remains valid and in effect. Termination or expiration of
any Order Form shall leave other Order Forms unaffected.
b. Termination. Either party may suspend its performance under or
terminate this Agreement immediately upon written notice at any time
if: (i) the other party is in material breach of any warranty, term,
condition or covenant of this Agreement and fails to cure such breach
within thirty (30) days after receipt of written notice of such
breach; or (ii) the other party shall be adjudicated bankrupt or shall
petition for or consent to any relief under any bankruptcy,
reorganization, receivership, liquidation, compromise, or any
moratorium statute, whether now or hereafter in effect, or shall make
an assignment for the benefit of its creditors, or shall petition for
the appointment of a receiver, liquidator, trustee or custodian for
all or a substantial part of its assets, or if a receiver, liquidator,
trustee or custodian is appointed for all or a substantial part of its
assets and is not discharged within thirty (30) days after the date of
such appointment. This Agreement does not contain termination for
convenience rights.
c. Effect of Termination. Upon termination of this Agreement, Customer
shall immediately cease using the Platform and the Services and pay to
Company any outstanding sums due under the Agreement.
d. Survival. The provisions of Sections 2.d, 4, 5, 6, 8, 10 and 12 hereof
will survive the termination of this Agreement for any reason.
3. Services. The Services provided hereunder shall be as set forth on any
Order Form.
4. Confidentiality. As used herein, any party that provides the other party
any of its Proprietary Information will be deemed the “Disclosing Party”
and the recipient thereof will be deemed the “Receiving Party.” For the
purposes hereof, “Proprietary Information” will mean all financial
information, product and service pricing structures, business plans and
strategies, processes, customer lists, contacts, sales data, analytics,
software, algorithms, methods, inventions, and any other proprietary or
trade secret information of the Disclosing Party provided to the Receiving
Party hereunder. The Receiving Party agrees (i) to hold the Disclosing
Party’s Proprietary Information in confidence and to take reasonable
precautions to protect such Proprietary Information (including, without
limitation, all precautions the Receiving Party employs with respect to its
own Proprietary Information); (ii) not to disclose any such Proprietary
Information to any third person except to those of its employees,
contractors, affiliates, third party service partners and vendors
(collectively, “Representatives”) that need to know such Proprietary
Information in connection with the Services contemplated herein, provided
that such Representatives are subject to written obligations of
confidentiality and non-use of Proprietary Information that are at least as
protective as those set forth herein; and (iii) not use, copy, extract or
summarize such Proprietary Information or any portion thereof except to
evaluate internally its relationship with the Disclosing Party and/or to
provide the Services contemplated herein. Without granting any right or
license, the Disclosing Party agrees that the foregoing will not apply with
respect to any information that the Receiving Party can document (i) is or
becomes (through no improper action or inaction by the Receiving Party or
the Receiving Party’s Representatives) generally available to the public;
(ii) was in its possession or known by it without restriction prior to
receipt from the Disclosing Party; (iii) was rightfully disclosed to it by
a third party without any breach of an obligation of confidentiality; or
(iv) was independently developed without use of or reference to any
Proprietary Information of the Disclosing Party. The burden of proving the
existence of facts that would qualify information under foregoing
exceptions (i)-(iv) will rest with the Receiving Party. The Receiving Party
may make disclosures as required or compelled by applicable law,
regulation, the rules of any stock exchange, or a court order issued by a
court of competent jurisdiction provided that the Receiving Party subject
to such court order (a) provides the Disclosing Party with prompt written
notice of any such compelled disclosure, (b) uses diligent reasonable
efforts to limit disclosure, (c) uses commercially reasonable efforts to
obtain confidential treatment or a protective order in connection with the
information subject to such compelled disclosure, and (d) allows the
Disclosing Party to participate in any such proceeding. The obligations of
the Company set forth in this Section 4 shall not apply to suggestions and
feedback for Platform or Service improvement(s) provided by Customer and,
as such, the Company shall have no obligation or liability to Customer for
its use or disclosure of such feedback.
5. Representations and Warranties; Assumption of Liability; Disclaimer.
a. Each party represents and warrants that (i) it has full right, power and
authority to enter into this Agreement and carry out its obligations
hereunder; (ii) the person executing this Agreement is authorized to do
so on its behalf; and (iii) the execution, delivery and performance
under this Agreement does not conflict with any other agreement,
instrument or understanding to which it is a party or by which it may be
bound.
b. Customer represents and warrants that (i) it will comply with all
applicable laws, rules and regulations, including data privacy, security
and telemarketing laws, self-regulatory standards and industry
guidelines (e.g., CAN-SPAM, CCPA, COPPA, FCPA, the Digital Advertising
Alliance’s Self-Regulatory Principles for Online Behavioral Advertising,
the Interactive Advertising Bureau (IAB) Code of Conduct, and the
Network Advertising Initiative (NAI) Code of Conduct) in connection with
its use of the Services; and (ii) it will clearly and conspicuously post
notices on its website(s) and/or application(s) regarding the
collection, transfer and use of data collected on such website(s) and/or
application(s) by it and third parties, including appropriate choice
mechanisms, in accordance with the foregoing.
c. Assumption of Liability for Customer’s End Users. Company shall not be
subject to, responsible for, or liable under any other terms,
conditions, representations, warranties or obligations with respect to
any Services procured by Customer on behalf of or offered as part of a
bundled solution to Customer’s End Users. Customer shall cause its End
Users to agree to: (a) be bound by and comply with any Order Form and
these Terms and Conditions; and (b) use the Services only in accordance
with applicable laws, rules and regulations, including data privacy,
security and telemarketing laws, self-regulatory standards and industry
guidelines. Customer shall be responsible for all acts and omissions of
its End Users in the use of the Services or breach of any Order Form or
these Terms and Conditions. Customer will enforce the terms of its
agreements with End Users, notify Company of any breach of any Order
Form or these Terms and Conditions by its End User, including through
the use or misuse of the Services, and give Company all reasonable
assistance in connection with any proceedings that Company may institute
related to such breach.
d. Warranty Disclaimer. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES WITH RESPECT TO
ANY ASPECT OF ITS SERVICES PROVIDED HEREUNDER AND ALL OF SUCH WARRANTIES
ARE HEREBY EXPRESSLY DISCLAIMED BY COMPANY AND WAIVED BY CUSTOMER,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT
OPERATION OF OR USE OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE
TRANSFER OR TRANSMISSION OF DATA OVER COMMUNICATIONS FACILITIES,
INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO
LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH
COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
e. Export Compliance. The Platform and Services may be subject to export
laws and regulations. Each party agrees that (i) it is not named on any
U.S. or EU government denied party or sanctioned entity list and (ii) it
shall comply in all respects with applicable export laws or regulations,
including without limitation, laws, regulations and guidance enforced by
the Office and Foreign Asset Control. Customer agrees that it will not
permit any End User to access or use the Platform or Services in a U.S.
or EU embargoed country or in violation of any applicable export laws or
regulations.
f. Anti-Corruption. Each party shall comply with all applicable laws and
regulations relating to anti-bribery and anti-corruption, including
without limitation, the United States Foreign Corrupt Practices Act
(“FCPA”), the United Kingdom Bribery Act and any other EU applicable
laws and directives. Customer represents and warrants that it has not
received or been offered any illegal or improper bribe, kickback,
payment, gift, or item of value from any Company personnel or agent in
exchange for licensing the Platform or Services. Reasonable gifts and
entertainment provided in the ordinary course of business shall not be a
violation of the foregoing restriction, provided that each party will
comply with its internal policies and codes of conduct relating to the
exchange of gifts or provision of entertainment. Each party will
promptly notify the other party of any perceived or actual violations of
its obligations under this Section.
6. Indemnification.
a. Customer Indemnification. Customer will defend, indemnify and hold
Company harmless from and against any losses, liabilities, damages and
expenses (including reasonable attorneys’ fees and legal costs) incurred
by Company as the result of any claim, suit or proceeding brought
against Company by a third party arising or resulting from (i)
Customer’s breach of any representation, warranty, covenant or
obligations contained in this Agreement, including any obligations with
respect to End Users in Section 5.c. herein, or any terms, conditions,
requirements or restrictions imposed by third party vendors with respect
to Customer’s campaign; (ii) Customer’s products or services, and/or any
representations or marketing claims related thereto; (iii) creative
materials or collateral prepared or placed for Customer to the extent
created by Company pursuant to specific instructions or using materials
provided by Customer; (iv) Customer Content (as defined herein) or (v)
any gross negligence or willful misconduct of Customer in its
performance of this Agreement; provided, however, that Company shall
give Customer prompt notice of any such claims, cooperate with Customer
in responding to such claims, and permit Customer to control the defense
or settlement of such claims without Company’s prior written consent
only insofar as such claims may be settled without liability, admission
of wrongdoing or any other prejudice to any rights or interests of
Company.
b. Company Indemnification. Company will defend, indemnify and hold
Customer harmless from and against losses, liabilities, damages and
expenses (including reasonable attorneys’ fees and legal costs) incurred
by Customer as a result of any claim, suit or proceeding brought against
Customer by a third party arising or resulting from arising out of or
relating to any claim alleging the Platform or Services infringe upon or
violate any third party’s patent, copyright, trade secret, proprietary,
or other intellectual property rights. Company’s indemnity obligations
are conditioned upon: (a) Customer’s prompt written notification of any
such claim, (b) Customer’s reasonable cooperation with Company with the
defense and investigation of any such claim, and (c) Company having sole
control of the defense of any such claim and all negotiations for its
settlement. Notwithstanding the foregoing, in all events, Customer shall
be permitted to participate in the defense of any such suit or
proceeding with counsel of its own choosing at Customer’s sole cost and
expense. If Customer’s use of the Platform or Services becomes or, in
Company’s reasonable opinion, is likely to become the subject of such a
claim, Customer will permit Company, at Company’s sole expense and
option to: (1) procure for Customer the right to continue to use the
Platform or Services; (2) replace or modify the Platform or Services
related to the allegation so Customer’s use of the Platform or Services
no longer infringes upon or violates the intellectual property rights of
a third party; or (3) if the options contained in items (1) or (2) are
unavailable or impossible, terminate this Agreement, accept the return
of the Platform or Services, and grant to Customer a prorated refund of
all applicable prepaid Fees related to the infringement allegation. This
Section 6(b) reflects Company’s entire liability and Customer’s
exclusive remedies for infringement of intellectual property rights of
any kind.
c. Indemnity Exclusions. Company shall have no responsibility to Customer,
through indemnification obligations or otherwise, to the extent any
third party infringement claim is the result of: (i) Customer’s use of
the Platform or Services except as permitted under this Agreement and
any applicable documentation (including the unlicensed use of the
Platform or Services by Customer); (ii) any use of the Platform or
Services in combination with any third party software or products that
are not expressly authorized by Company; or (iii) any modification to
the Platform or Services by Customer or for Customer by any third party
other than Company.
7. Payment.
a. Customer shall pay Company for the Services provided hereunder in
accordance with the terms set forth on the applicable Order Form and
this Section 7. All payment obligations, amounts payable by Customer for
the Services (“Fees”) and any other amounts due hereunder are
non-cancelable, and all amounts paid by Customer in connection with this
Agreement are non-refundable. All Fees set forth on an Order Form are
exclusive of applicable taxes, including sales taxes and VAT (if any),
which shall be paid by Customer at the rate and in the manner prescribed
by applicable law. All Fees, taxes (including sales tax and VAT, as
applicable) and other charges invoiced to Customer are due in full
within 30 days of the date of invoice, without deduction. If applicable,
the amounts billed on such invoice will include the greater of (i) the
minimum monthly campaign budget (or similar entry stated on any Order
Form) and (ii) actual Fees incurred for the Services, which, if in
excess of the estimated monthly campaign utilization (or similar entry
stated on any Order Form), will be the aggregate amount authorized by
Customer in writing. Late payments will incur interest in an amount
equal to the lesser of 1.5% per month or the maximum allowable under
applicable law. Customer shall reimburse Company for all costs and
expenses (including reasonable attorneys’ fees) incurred in collecting
past due amounts.
b. All price increases for a Renewal Term shall occur as set forth on the
applicable Order Form or as otherwise agreed by the parties. All price
increases will be effective upon the commencement of any Renewal Term.
Billing for any pricing increases will commence in the first month of
any Renewal Term .
c. Without prejudice to any other right or remedy of Company, Company shall
be entitled to suspend any Services to which Customer has access until
payment of all overdue invoices has been made in full.
8. Software. The following terms and conditions outlined in this Section 8
specifically relate to any Software provided by Company:
a. License. Company hereby grants to Customer during the Term a limited,
non-transferable, non-sublicensable, non-exclusive, revocable license to
access and use the Platform and Services subject to the terms and
conditions set forth in this Agreement, solely for the Customer’s
internal business purposes (the “License”).
b. Reservation of Rights. The Platform and Services are licensed by Company
to Customer, and not sold. Customer acquires only the right to use the
Platform and Services in accordance with this Agreement and does not
acquire any rights of ownership. Nothing herein shall be construed to
transfer any rights, title or ownership of any Company or
Company-licensed software, technology, materials, information or
Intellectual Property Rights to Customer. All right, title and interest
(including all Intellectual Property Rights) in and to the Platform and
Services shall at all times remain the sole and exclusive property of
Company and/or its respective licensors and all use thereof shall inure
to the benefit of Company and/or its respective licensors. Except as
expressly set forth in this Agreement, no right or license, express or
implied, is granted to Customer or any third party by estoppel,
implication, exhaustion or other doctrine of law, equity or otherwise
with respect to any product, service, software, technology, materials,
information or Intellectual Property Rights of Company or its affiliates
or licensors. “Intellectual Property Rights” means all forms of
proprietary rights, titles, interests, and ownership including patents,
patent rights, copyrights, trademarks, trade dresses, trade secrets,
know-how, mask works, droit moral (moral rights), publicity rights and
all similar rights of every type that may exist now or in the future in
any jurisdiction, including without limitation all applications and
registrations therefore and rights to apply for any of the foregoing.
c. Third Party Licenses. Certain software components of the Platform and
Services are supplied pursuant to license agreements from third parties,
and Customer agrees that Customer’s use of the Platform and Services
shall be subject to the provisions of such third party license
agreements.
d. Restrictions.
i. License Restrictions. Customer agrees to use the Platform and
Services only for lawful purposes and only as expressly authorized
under this Agreement. Without limiting the generality of the
foregoing, except as expressly authorized hereunder, Customer agrees
that it shall not, directly or indirectly: (i) license, sublicense,
sell, resell, rent, lease, transfer, assign, distribute, display or
otherwise make the Platform or Services, in whole or in part,
including any content or data derived therefrom that is not directly
owned by Customer or for which Customer has all necessary rights,
available to any third party; (ii) reverse engineer, decompile,
disassemble, modify, translate, reconstruct, omit, distort, obscure,
copy or create derivative works of all or any portion of the
Platform, Services, any underlying Software, or any other Company
Property (as defined below), or otherwise attempt to access the
source code of the Platform or Services; (iii) incorporate any
portion of the Platform or Services into Customer’s own programs or
compile any portion of them in combination with Customer’s own
programs; (iv) store or otherwise capture to physical media, or
enable a third party to store or capture, the Platform or Services
or any portion thereof; (v) permit any persons, other than
Customer’s authorized users for which Customer has procured UserIDs
(as defined below) from Company, to access and use the Platform or
Services; (vi) upload or transmit through the Platform or Services
any Customer Content (as defined below) with respect to which
Customer does not either own all right, title and interest or have
the appropriate license(s) for lawful use, or otherwise violate or
infringe upon the intellectual property rights of any third party in
Customer’s use of the Platform or Services, including the use or
distribution of any data derived from the Platform or Services; or
(vii) violate any laws, rules or regulations in connection with its
use of the Platform or Services, including any data or content
contained in, transmitted through or derived therefrom.
ii. Prohibited Acts. Customer acknowledges and agrees that Customer is
prohibited from doing any act that may have the effect of
undermining the integrity of the Platform, Services, any related
computer systems, infrastructure or environment, or the methods by
which Company provides Services to users. Without limiting the
generality of the foregoing, Customer agrees that it shall not,
directly or indirectly: (i) defeat, circumvent or modify any
authentication technology or other security measures, controls,
limitations, or content or functionality filters contained in or
associated with the Platform or Services, or otherwise attempt to
access any aspect of the Platform or Services that Customer has not
been granted authorization to access under this Agreement; (ii)
deploy or facilitate the use or deployment of any script, routine,
robot, spider, scraper or any other automated means, method or
device with respect to Customer’s access and use of the Platform and
Services for any purpose, including to access, view, select, or copy
in whole or in part, any content, program, functionality of the
Platform or Services, or any other proprietary information or trade
secret of Company that is made available through the Platform or
Services; (iii) deploy or facilitate the use or deployment of any
program, system, means, method or device, for any purpose that
places an unreasonable, unnecessary or excessive demand or load on
the Platform, Services, or related hardware and connections, or
prohibits, denies or delays access to Services by other users or
otherwise threatens the continuous services of Company’s ISPs,
suppliers and vendors; (iv) introduce into the Platform or Services
any program, executable file or routine (such as a worm, Trojan
horse, cancel-bot, time bomb or virus) irrespective of whether any
such program or routine results in detrimental harm to the Platform,
Services, or any underlying systems or programs; (v) remove any
proprietary notices, labels or marks from the Platform or Services;
(vi) establish any direct or deep link or other connection to any
specific page or location within the Platform or Services, other
than the Platform log-in page; (vii) use or attempt to use another
user’s account without authorization, or interfere with another
user’s access to the Platform or Services; or (viii) access or use
the Platform or Services to design, develop, build, market or
support a competitive product or service.
e. Access and Use. Company will enable Customer to access and use the
Platform for the duration of the Term, subject to any early termination
of this Agreement in accordance with the terms hereof. Access to the
Platform will be through unique log-in credentials assigned to Customer
by Company (each, a “UserID”). Customer shall be given that number of
UserIDs as specified in the Agreement. Customer will provide accurate
and complete information in registering its authorized users for account
access. Customer acknowledges and agrees that the log-in credentials
assigned hereunder are Confidential Information and may only be used by
Customer and its authorized users to access the Platform in accordance
with the terms of this Agreement, and that Customer will not publish,
share, or otherwise enable any third party, directly or indirectly, to
access the Platform for any purpose. Customer further agrees that
Customer is responsible for its and its authorized users’ use of the
Platform, including use via the UserIDs, and for any consequences
thereof. Customer agrees to immediately notify Company of any
unauthorized or improper use of any log-in credentials of Customer. All
of the rights, obligations, restrictions, representations and warranties
related to Customer’s access and use of the Platform under this
Agreement shall apply to Customer and all of its Representatives.
Customer shall be responsible for all acts and omissions of its
Representatives in the performance of this Agreement and for any breach
of this Agreement by any of its Representatives.
f. Intellectual Property. As between Company and Customer, Company and/or
its respective licensors retain all right, title and interest (including
Intellectual Property Rights) in and to the Platform and Services,
including, but not limited to, any elements, components, content,
technology, software, code, documentation, derivative works, revisions,
enhancements, modifications, condensations and/or compilations of or
relating to the Platform and Services, and any trademarks, brand
identifiers, materials and information, which are created, authored,
developed, conceived and/or reduced to practice by Company and/or its
respective licensors, including in connection with Company’s provision
of the Platform and Services to Customer under this Agreement (“Company
Property”). As between Customer and Company, Customer retains all right,
title and interest (including Intellectual Property Rights) in and to
the Customer Content, and any software, technology, materials and
information which are independently created, authored, developed,
conceived or reduced to practice by Customer.
g. Customer Content.
i. Content Ownership. Customer represents and warrants that (i)
Customer and/or its licensors own all right, title and interest in
and to all material, content, media or data that Customer uploads
to or transmits through the Platform or Services (collectively,
“Customer Content”), or otherwise have all rights in such Customer
Content as necessary to furnish to Company and use the same in
connection with Customer’s use of the Platform and Services and to
grant the rights granted by Customer in this Agreement, and (ii)
such Customer Content, and Customer’s and Company’s use thereof as
provided in this Agreement, do not and will not misappropriate or
infringe upon any third party’s Intellectual Property Rights, or
violate any other rights of any third party.
ii. License to Content. In addition to any other rights expressly
provided in the Agreement, Customer hereby grants to Company and
its third party service providers a non-exclusive, royalty-free,
worldwide license to use and display all Customer Content that
Customer provides to Company or that are otherwise uploaded to or
captured by the Platform through Customer’s use of the Platform and
Services, solely as required for Company to provide the Services
and perform its obligations under this Agreement.
iii. Data Security and Destruction. Company shall keep all Customer
Content strictly confidential. Company shall maintain and use
appropriate administrative, physical, and technical safeguards and
measures for protection of the security, confidentiality and
integrity of all Customer Content uploaded to or transmitted
through the Platform or Services, including protections against
unauthorized disclosure or access, or accidental or unlawful
destruction, loss or alteration. Customer Content shall be used and
stored by Company solely to the extent required to provide the
Services and perform its obligations under this Agreement, and
Company shall not use or store the Customer Content for any other
purpose whatsoever. Company shall ensure that all personnel and
third party service providers having access to the Customer Content
are subject to confidentiality obligations with respect thereto.
Company shall notify Customer within a reasonable time in the event
that Company determines that a security breach has resulted in an
unauthorized disclosure of or access to Customer Content. Upon
termination of this Agreement or upon the written request of
Customer at any time, Company shall ensure the deletion and
destruction of all Customer Content.
h. Service Level Agreement. The Services provided by Company to Customer
hereunder shall be in accordance with the terms of the Service Level
Agreement set forth on Exhibit 1 annexed hereto.
i. Suspension. Company reserves the right to temporarily suspend the
Services or terminate the Agreement in the event of a breach by Customer
of the obligations under this Section 8.
9. Data Processing Addendum. The parties agree to be bound by the Data
Processing Addendum found here. Company may transfer personally
identifiable information (“Personal Data”) collected within the UK, EU or
Switzerland to Company’s affiliated entities in other countries. Where such
transfer is required, Company has executed the Standard Contractual Clauses
with those affiliated entities as set out in European Commission Decision
(EU) 2021/914 of 4 June 2021, as well as the UK International Data Transfer
Addendum to the EU Standard Contractual Clauses as issued by the UK
Information Commissioner under S119A(1) Data Protection Act 2018 (as
applicable to any transfers from the UK to non-adequate third countries).
Company affiliates to which Company may transfer Personal Data are located
in the following countries: the United States, Australia, Israel and India.
10. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT
LIMITATION, LOST DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE
GOODS OR SERVICES, HOWEVER ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO BREACHES OF SECTION
4 (CONFIDENTIALITY) AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, A
PARTY’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT DUE FOR
THE APPLICABLE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS
GIVING RISE TO THE CLAIM. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY
SET FORTH IN THIS SECTION. CUSTOMER ACKNOWLEDGES THAT THE FEES AND CHARGES
SET FORTH HEREIN ARE DEPENDENT ON CUSTOMER’S AGREEMENT TO SUCH LIMITATIONS
AND THAT, WITHOUT SUCH LIMITATIONS, FEES AND CHARGES ASSESSED FOR THE
SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.
11. Non-Exclusivity. Customer acknowledges that Company is in the business of
promoting the interests of its customers with respect to the services it
provides hereunder. As such, nothing in this Agreement will restrict
Company’s ability to represent other customers and provide services
substantially similar to or the same as the services provided hereunder to
such other customers.
12. Miscellaneous.
a. a. Assignment.Neither party may assign any of its rights or obligations
under this Agreement without the prior written consent of the other
party, which consent will not be unreasonably withheld, conditioned
or delayed; provided, however, that such consent shall not be
required if Company assigns this Agreement in its entirety to an
affiliate or to a successor entity in connection with a change in
control, including any merger, combination or sale of all or
substantially all of its assets.
b. Controlling Law.
i. i. United States and Canada. If Customer is domiciled in the
United States or Canada, this Agreement will be governed by
and construed in accordance with the laws of the State of
California without regard to its conflict of laws provisions.
The sole and exclusive jurisdiction and venue for actions
related to this Agreement will be the state and federal
courts located in Orange County, California. The parties
hereto consent to the exclusive jurisdiction of such courts
and agree that process may be served in the manner provided
herein for giving of notices or otherwise as allowed by
California or federal law, as applicable.
ii. Australia. If Customer is domiciled in Australia, this
Agreement will be governed by and construed in accordance
with the laws of Australia. The sole and exclusive
jurisdiction and venue for actions related to this Agreement
will be the courts located in New South Wales, Australia. The
parties hereto consent to the exclusive jurisdiction of such
courts and agree that process may be served in the manner
provided herein for giving of notices or otherwise as allowed
by Australian law.
iii. France. If Customer is domiciled in France, this Agreement
will be governed by and construed in accordance with the laws
of France. The sole and exclusive jurisdiction and venue for
actions related to this Agreement will be the Commercial
Courts of Paris. The parties hereto consent to the exclusive
jurisdiction of such courts and agree that process may be
served in the manner provided herein for giving of notices or
otherwise as allowed by French law.
iv. Germany. If Customer is domiciled in Germany, Austria or
Switzerland, this Agreement will be governed by and construed
in accordance with the laws of Germany. The place of
jurisdiction will be Berlin.
v. UK and Rest of World. If Customer is domiciled in the United
Kingdom or any other territory or jurisdiction that is not
covered by Sections 12(b)(i)-(iii) hereof, this Agreement
will be governed by and construed in accordance with the laws
of England and Wales. The sole and exclusive jurisdiction and
venue for actions related to this Agreement will be the
courts having competent jurisdiction in London, England. The
parties hereto consent to the exclusive jurisdiction of such
courts and agree that process may be served in the manner
provided herein for giving of notices or otherwise as allowed
by English law.
c. Severability. All provisions of this Agreement will be considered as
separate terms and conditions, and in the event any one will be held
illegal, invalid or unenforceable, all other provisions hereof will
remain in full force and effect as if any such illegal, invalid, or
unenforceable provision were not a part hereof, unless the provision
held illegal, invalid or unenforceable is a material provision of
this Agreement, in which case, Company and Customer agree to
appropriately amend this Agreement with replacement provisions
containing mutually acceptable terms and conditions.
d. Independent Contractors.The parties hereunder are independent
contractors. Except as expressly provided herein, neither party will
have any right to assume, create, or incur any expense, liability, or
obligation, express or implied, on behalf of the other party. This
Agreement is not intended, nor will it be construed as a joint
venture, association, partnership or other form of a business
organization or agency relationship.
e. Entire Agreement. This Agreement, together with all exhibits, order
forms, schedules and amendments hereto, constitutes the entire
agreement between Company and Customer with respect to the subject
matter hereof, and supersedes all prior and contemporaneous
understandings and agreements between the parties concerning the
subject matter hereof, whether oral or written. No waiver,
modification, alteration or amendment of any of the terms and
conditions hereof will be effective unless and until set forth in
writing duly signed by an authorized agent or employee of each of
Company and Customer. This Agreement will prevail over terms and
conditions of any Customer-issued purchase order or other ordering
documents, which will have no force and effect, even if Company
accepts or does not otherwise reject the purchase order or other
ordering document.
f. Force Majeure. Except for the obligation to make payments of any fees
and charges due hereunder, neither party will be liable for any
failure or delay in its performance under this Agreement due to any
cause beyond such party’s control, including, without limitation,
acts of war, terrorism, epidemics or pandemics, acts of God, embargo,
riot, sabotage, labor shortage or dispute, governmental act, failure
of the Internet or any component or operating network infrastructure
thereof (each, a “Force Majeure Event”), provided that the delayed
party: (i) gives the other party prompt notice of such cause; and
(ii) uses commercially reasonable efforts to promptly correct such
failure or delay in performance. If Company is unable to provide
Customer with the Services for a period of sixty (60) consecutive
days as a result of a continuing Force Majeure Event, either party
may elect to terminate this Agreement.
g. Publicity. Company may use Customer’s name and logo in connection
with customer lists on its website, in marketing, media and investor
relations materials and in the Company’s SEC filings. All other
references, announcements, and/or press releases with respect to
Customer by Company will require the prior written approval of
Customer, with such approval not to be unreasonably withheld,
conditioned or delayed.
h. Notice. All notices to either party shall be in writing and delivered
by hand, certified mail or overnight delivery to the address set
forth by Company and Customer in the signature block below, or to
such other address as either party shall give by notice to the other
party in accordance with this Section and such shall be deemed
effective upon delivery. Alternatively, the parties may, at their
election, utilize electronic mail as the method of delivery of any
such notice provided hereunder, with a copy, in the case of Company,
to legaldept@veritone.com. Notices sent by email shall be delivered
to the email addresses designated by a party during the Term and
shall be deemed effective upon confirmation of delivery by a “read
receipt” or other such notice of delivery generated by the applicable
email system, but in any event, by reply of the recipient of such
notice.
i. Updates. The Company may provide updates to or otherwise modify the
Services from time to time; provided however, such updates will not
materially degrade the operation of the Services. Any such updates
shall be provided at no cost to Customer.
j. No Continuing Waiver. Any waiver by Company of any breach of any term
of this Agreement will not be deemed to be a continuing waiver but
will apply solely to the instance to which such waiver is directed.
k. Waiver of Contractual Right. The failure of either party to enforce
any provision of this Agreement shall not be construed as a waiver or
limitation of that party’s right to subsequently enforce and compel
strict compliance with every provision of this Agreement.
l. Counterparts. Any Order Form subject to this Agreement may be
executed in any number of counterparts, each of which will be deemed
to be an original, and all of which, taken together, will constitute
one and the same instrument. Any Order Form subject to this Agreement
may also be executed electronically, and such electronic signatures
will be deemed valid and binding upon the parties and will serve in
all respects as original signatures. Signatures may be delivered
among and between the parties by facsimile or electronic means.
Thereafter, the parties agree that an electronic copy of this
Agreement may be used for any and all purposes for which an original
may be used.
EXHIBIT 1
Service Level Agreement
a. The minimum target uptime for the Platform will be 99.44% in any month,
based on 24/7 availability.
b. The Customer will be entitled to a refund equivalent to one week’s worth of
the annual fee where the availability of P1 elements of the system fall
below the minimum target uptime in a month. The P1 elements of the system
are:
i. Majority of users cannot log into the system; and/or
ii. Majority of users are unable to post job adverts out from the system,
where the issue or failure does not result from job board issues
c. The loss of availability begins from the point that the Customer logs the
first call with the Helpdesk and makes Company aware that the issue is
affecting multiple users.
d. This SLA excludes any downtime caused by any relevant action or inaction of
the Customer (including, but not limited to, web connection and mail server
faults), failure due to Force Majeure or other circumstances beyond
Company’s reasonable control.
e. This SLA also excludes any downtime due to scheduled and pre-notified
maintenance, Company shall endeavour to provide the Customer notice of all
scheduled maintenance at least 72 hours in advance of such work.
f. To be entitled to a refund under this SLA, the Customer must have settled
all invoices in accordance with the Agreement.
.
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