Last Modified: September 3, 2020
These Compass Terms of Service (the “Terms of Service”) set forth the terms and conditions governing the relationship between Rebel AI Inc. (“Rebel AI”) and the client (“Customer”) identified in the applicable Service Order, statement of work or other agreement (collectively, the “Order”) relating to the Rebel AI Compass Platform (“Compass Platform”) services provided by Rebel AI as set forth in the Order. The Terms of Service and the Order shall collectively be referred to as the “Agreement”. Rebel AI and Customer are individually referred to as a “Party” and collectively as the “Parties.”
- Scope of Services. Subject to the terms and conditions of this Agreement, Rebel AI shall provide the services set forth in the Order as further defined and described in the attached Schedule 1 (the “Services”). Customer shall not control the manner or means by which Rebel AI performs the Services.
- Additional Terms.
- Order Terms. Each Order may contain additional terms and conditions applicable to the Services (the “Order Terms”). To the extent there is any conflict between the Order Terms and the Terms of Service, the Order Terms shall control.
- Changes to Services. Rebel AI reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Rebel AI’s Services to its customers, the competitive strength of or market for Rebel AI’s Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
- Savings Clause. Rebel AI’s failure to perform, or delay in performing, its responsibilities under this Agreement (including any Order) shall be excused if and to the extent that Rebel AI demonstrates that such non-performance or delay is caused by: (i) the failure of Customer or Customer personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by Rebel AI or Rebel AI personnel at the request of Customer; (iii) any act performed by Customer, Customer personnel, third parties or vendors, to the extent that such act was not otherwise agreed by the Parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of Rebel AI systems.
- Third Party Services and Materials. Rebel AI may make certain products, software, content, data, or other materials, including related documentation, or services available to Customer that are owned by or licensed through a third party (“Third Party”), or may make its services available to be used by Customer within certain Third Party products or services (all third-party products, materials and services collectively referred to as “Third Party Services and Materials”). Rebel AI makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement with regard to the Third-Party Services and Materials. Customer’s exclusive remedy with regard to Third Party Services and Materials shall be against the Third Party. To the extent the Third Party Services and Materials are provided to Customer on license or other terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Terms”), Customer is bound by and shall comply with all Third-Party Terms, and Customer’s exclusive remedy as to the Third Party shall be against the Third Party.
- Access and Use, Customer Restrictions.
- Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Rebel AI hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable Order solely for use by Authorized Users in accordance with the terms and conditions in this Agreement. Such use is limited to Customer’s internal use. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
- Reservation of Rights. Except as expressly set forth otherwise, nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Compass Platform, or Third Party Services and Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Compass Platform, and Third Party Services and Materials are and will remain with Rebel AI and the respective Third Party rights holders.
- Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services and Materials, the applicable third-party license agreement or other Third-Party Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
- copy, modify or create derivative works or improvements of the Services;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
- bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
- input, upload, transmit or otherwise provide to or through the Services or Compass Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Compass Platform or Rebel AI’s provision of services to any third party, in whole or in part;
- remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
- access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights;
- send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
- attempt to gain unauthorized access to the Service or its related systems or networks;
- use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
- use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, the Compass Platform, or which, as determined by Rebel AI, may harm Rebel AI or users of the Compass Platform or Services or expose them to liability;
- use any device, software or routine that interferes with the proper working of the Services or the Compass Platform;
- access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Rebel AI’s detriment or commercial disadvantage; or
- otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
- 2.4 Service Management. Customer shall, throughout the Term, maintain within its organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement.
- Customer Obligations. In addition to any other provision of this Agreement, Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Materials (as defined below in Section 6.2) including all Customer Data (as defined below in Section 4.1); (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iii) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Services; (iv) obtain and maintain, and keep updated and under maintenance and support, all Customer computer hardware, software and communications equipment needed to access and use the Services; (v) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the Services. Customer further agrees that the result of the Services, including any information provided or made available to Customer in connection arising out of the Services, may be used solely for Customer’s internal, lawful business purposes solely with respect to the purposes for which it was provided, and shall not be resold, distributed, sublicensed, or otherwise shared with any other person or entity.
- Suspension or Termination of Services. Rebel AI may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Rebel AI receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Rebel AI to do so; or (b) Rebel AI believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Rebel AI; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Rebel AI’s other rights or remedies, whether at law, in equity, or under this Agreement.
- Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. REBEL AI HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) 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 (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized 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. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
- Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
- Fees; Payment Terms.
- Fees. In consideration of the provision of Services, and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Order (“Fees”) or as set forth in Schedule 2 if not addressed in the Order. Unless otherwise provided, Rebel AI will invoice Customer at least once per month. All Fees shall be due within ten (10) days after receipt of the invoice. All Fees are non-refundable.
- Expenses. Unless otherwise agreed to in the Agreement, Customer shall reimburse Rebel AI for all reasonable out of pocket expenses incurred in performance of the Services, including all media costs and all ad serving fees set forth on Schedule 2. Rebel AI reserves the right to charge such fees and expenses up front.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rebel AI’s income.
- Late Payment. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear a two percent (2%) late charge per month. Customer shall also reimburse Rebel AI for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Rebel AI does not waive by the exercise of any rights hereunder), Rebel AI shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due and such failure continues for five (5) days following written notice of the failure to pay.
- Intellectual Property Rights.
- Services and Rebel AI Materials/Customer-Specific Content. All right, title and interest in and to the Rebel AI Materials, including all Intellectual Property Rights therein, are and will remain with Rebel AI and, and with respect to Third Party Services and Materials, the applicable Third Party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third Party Services and Materials. Customer has no right, license, or authorization with respect to any of the Rebel AI Materials except as expressly set forth in this Agreement. All other rights in and to the Rebel AI Materials are expressly reserved by Rebel AI. “Rebel AI Materials” means the Services, the Rebel AI Platform including the Compass Platform, specifications, documentation, and Rebel AI systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services, including all data collected by the Compass Platform and Services. Notwithstanding the above, Rebel AI Materials shall not include any text, images, graphic designs, audio, video or other proprietary content provided by Customer specific to the identification, description or marketing of Customer products and services (“Customer-Specific Content”). To the extent Rebel AI obtains any rights to the Customer-Specific Content, Rebel AI hereby assigns to Customer all right, title and interest in and to the Customer-Specific Content. To the extent Customer obtains any rights to the Rebel AI Materials, Customer hereby assigns to Rebel AI all right, title and interest in and to Rebel AI Materials. “Intellectual Property Rights” means any and all registered and 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.
- Customer Intellectual Property License. Customer grants to Rebel AI a limited, non-exclusive, royalty-free right and license during the Term, with the right to use the Customer Materials as necessary to fulfill Rebel AI’s obligations under this Agreement, solely for the purpose of providing the Services. “Customer Materials” means trademarks, trade names, service marks, trade dress, designs, artwork and logos of Customer associated with the Services, all images, data and other materials provided by the Customer for the purposes of this Agreement, all Customer Data, and all Customer-Specific Content and other content provided by Customer for posting on the Compass Platform or through the Services including Customer’s customer data.
- Feedback. If Customer or any Authorized User transmits or provides any communications or materials to Rebel AI by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Compass Platform (“Feedback”), Rebel AI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Rebel AI on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Rebel AI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Rebel AI is not required to use any Feedback.
- Publicity. Customer agrees that Rebel AI may use Customer’s business name, website URL and logo on its websites and in its marketing materials, identifying Customer as a current or former customer of Rebel AI.
- Support. Except as otherwise provided in an Order, Rebel AI will provide support as set forth in Schedule 1.
- Confidentiality. Each Party shall (a) use Confidential Information (as defined below) of the other Party only for the purposes of exercising rights or performing obligations in connection with this Agreement; and (b) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other Party (including without limitation all precautions employed by a Party with respect to its own Confidential Information), in each case, for a period commencing upon the date of disclosure until the later of three years after disclosure, termination of this Agreement, or if the Confidential Information is a trade secret, the date the information is no longer a trade secret under applicable law. Notwithstanding the foregoing, either Party may disclose Confidential Information (a) to its employees or independent contractors for the purpose of performing its obligations or exercising its rights hereunder, provided that each such employee and independent contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein; and (b) if required by law or a court, provided the receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the disclosing Party to participate in the proceeding. “Confidential Information” means and includes the terms of this Agreement and all confidential and proprietary information of a Party, including, without limitation, computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, customer and product information, data and development plans, of any nature and in any form whatsoever, provided that such information is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation or is disclosed in such a manner that a reasonable person would understand that such information is confidential and proprietary. Customer agrees without limitation that Rebel AI’s prices, proposals and quotes related to an Order, and all confidential information of Rebel AI’s licensors, service providers and suppliers, are Confidential Information of Rebel AI. Confidential Information does not include information that the receiving Party can document: (i) is or becomes (through no improper action or inaction by the receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction on disclosure or use prior to receipt from the disclosing Party; (iii) was rightfully disclosed to it by a third party that rightfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the disclosing Party.
- Term and Termination.
- 10.1 Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the initial term of the applicable Order (the “Initial Term”). At the end of the Initial Term, and on each one year anniversary thereafter, the term of this Agreement shall automatically extend at Rebel AI’s then current fee schedule for an additional one year period (a “Renewal Term,” and with each other Renewal Term and the Initial Term, the “Term”), unless on or before the date that is 45 calendar days prior to the end of the Initial Term or any Renewal Term, either Party provides written notice to the other Party of non-renewal.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- either Party may terminate this Agreement or any Order, effective on written notice to the other Party, if the other Party materially breaches this Agreement or the applicable Order, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days (ten (10) days for any failure to pay amounts due) after the non-breaching Party provides the breaching Party with written notice of such breach; and
- either Party may terminate this Agreement (and all Orders), effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Surviving Terms. Any provision or other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
- Representations and Warranties.
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Additional Rebel AI Warranties. Rebel AI represents and warrants to Customer that Rebel AI will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Rebel AI’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the above warranty shall be for Rebel AI to use reasonable commercial efforts to promptly cure any such breach. The foregoing remedy shall not be available, and all Services will be deemed accepted, unless Customer provides written notice of such breach within ten (10) days after delivery of the Services giving rise to the claim.
- 11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Rebel AI that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Rebel AI and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Customer and the provider of Third Party Services and Materials.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2, ALL SERVICES AND REBEL AI MATERIALS ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND REBEL AI AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR REBEL AI MATERIALS. REBEL AI, AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, REBEL AI AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR REBEL AI MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY SERVICES AND MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY SERVICES OR MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY SERVICES AND MATERIALS.
- Customer Indemnification. In addition to any other indemnification obligations under this Agreement, Customer shall defend, indemnify and hold harmless Rebel AI, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns, and third party providers and licensors (collectively, “Rebel AI Indemnified Party”), from and against any and all claims and losses arising out of or resulting: (i) (a) Customer Materials, including any processing of Customer Materials (including Customer Data) by or on behalf of Rebel AI in accordance with this Agreement; (b) use of any Third Party Services and Materials, (c) Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or (e) Customer’s or an Authorized Users’ violation or alleged violation of applicable law.
- Limitations of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL REBEL AI OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF REBEL AI, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO REBEL AI IN THE 3 MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Force Majeure. Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand U.S. mail or electronic mail to the address listed:
If to Rebel AI:
Rebel AI Inc.
657 S Taylor Ave
Louisville, CO 80027
If to Customer: the email or mailing address set forth in the applicable Order.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Non-Solicitation/Non-Hire. During the term of this Agreement and any Order, and for a period of one (1) year following the expiration or termination of this Agreement (including any Order), Customer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Rebel AI at any time during the term, or in any manner induce or attempt to induce any employee of Rebel AI to terminate their employment with Rebel AI, or (ii) materially interfere with the relationship of Rebel AI with any individual who at any time was an employee of Rebel AI.
- Entire Agreement. This Agreement, together with the Order and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Assignment. Neither Party may assign this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party; provided, however, that, notwithstanding the foregoing, Rebel AI may assign this Agreement to (i) any affiliate or (ii) a third party by way of merger, acquisition, consolidation or sale or transfer of all or substantially all of its assets or membership units. Any purported assignment of rights in violation of this Section is void.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Amendment and Modification; Waiver. Except as otherwise provided, no waiver or modification of this Agreement or any Order will be binding upon either Party unless made in writing and signed by duly authorized representatives of such Party, and no failure or delay enforcing any right will be deemed a waiver of such right.
- Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law. Except as otherwise provided, all matters relating to the Services, the Compass Platform and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).
(a) Scope, Governing Rules. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall exclusively be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).
(b) Authority of Tribunal, Judicial Review. The award rendered by the arbitrator shall be final and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction.
(c) Selection of Tribunal. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
(d) Seat of Arbitration. The seat or place of arbitration shall be Denver, Colorado, USA, and the Parties waive any objection to arbitration taking place in Denver.
- Attorneys’ Fees. In the event that any arbitration or any other action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.