1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under commonControl with another entity, so long as such Control exists. For the purposes of this definition, “Control”means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Thena for the Thena Product.
“Non-Thena Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Thena Product (other than third party data hosting services used by Thena). For clarity, the Thena Product excludes Non-Thena Products.
2.1 Provision of Thena Product.
(a) Subject to the terms and conditions of this Agreement, Thena will make the Thena Product available to Customer pursuant to this Agreement, the Service Level Agreement provided below in Exhibit A (the “SLA”) and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Thena Product for its internal business purposes to augment its customer communication capabilities.
(b) If an applicable Order Form allows Customer to trial or evaluate the Thena Product, or any portion thereof, whether free of charge or for a reduced fee, or Customer is otherwise provided access to the Thena Product free of charge (each, a “Trial”), then Customer may exercise the rights granted in this Section solely during the trial period indicated in the Order Form or during the period indicated by Thena. Thena reserves the right to suspend or terminate any Trial at any time.Notwithstanding anything contained herein, for any Trial, the Thena Product is provided “as is” without any representations, warranties or indemnities, and not subject to the SLA.
2.2 Data Security.
(a) Thena will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf ofCustomer to the Thena Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance ofthe foregoing, Thena will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Thena security page located at https://www.thena.ai/security (the “Security Page”) posted as of the date of the initial Order Form here under (and as the Security Page may be updated by Thena in a manner that does not materially decrease the applicable protections).
(b) To the extent that Thena processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA),on Customer’s behalf, in the provision of the Thena Product, the Data Processing Addendum (“DPA”)currently available at: https://www.thena.ai/data is hereby deemed incorporated herein by reference.
2.3 Customer Responsibilities.
(a) Customer will (i) be responsible for all use of the Thena Product under its account,(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Thena Product and notify Thena promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Thena Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Thena Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Thena will have no liability for such failure(including under any service level agreement).
(b) Customer will not use the Thena Product to transmit or provide to Thena any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
(c) Customer shall be responsible for the content of all communications sent by its users via the Thena Product. Customer agrees that it will not use the Thena Product to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography;(ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Thena and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to thisAgreement and references to Customer in this Agreement are deemed to be references to such Affiliate.Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
3.1 Fees. Customer will pay Thena the fees set forth in the applicable Order Form. Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicableOrder Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer’s payment plan includes an ongoing subscription that is automatically renewed periodically, Customer hereby authorizes Thena to bill Customer’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable Order Form until the expiration or termination of the applicable Order Form, and Customer further agrees to pay any and all charges so incurred.
3.2 Late Payment. Thena may suspend access to the Thena Product immediately upon notice ifCustomer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Thena. Customer will not withhold any Taxes from any amounts due to Thena.
4.1 Proprietary Rights. As between the parties, Thena exclusively owns all right, title and interest in and to the Thena Product, System Data and Thena’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, and Customer’s Confidential Information.“System Data” means data collected by Thena regarding the Thena Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Thena Product.
4.2 Feedback. Customer may from time to time provide Thena suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Thena Product. Thena will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Thena will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of thisAgreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting theConfidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Thena Product;(b) attempt to probe, scan or test the vulnerability of the Thena Product, breach the security or authentication measures of the Thena Product without proper authorization or wilfully render any part of the Thena Product unusable; (c) use or access the Thena Product to develop a product or service that is competitive with Thena’s products or Product or engage in competitive analysis or benchmarking;(d) transfer, distribute, resell, lease, license, or assign the Thena Product or otherwise offer the Thena Product on a standalone basis; or (e) otherwise use the Thena Product in violation of applicable law(including any export law) or outside the scope expressly permitted hereunder and in the applicableOrder Form.
6.1 Thena. Thena warrants that it will, consistent with prevailing industry standards, provide the Thena Product in a professional and workmanlike manner and the Thena Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty,Customer’s exclusive remedy shall be the re-performance of the deficient Thena Product or, if Thena cannot re-perform such deficient Thena Product as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable OrderForm and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.
6.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Thena to use the same as contemplated hereunder.
6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE,NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE THENA PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S CUSTOMER COMMUNICATION SYSTEMS AND PROCESSES. THENA DOES NOT REPRESENT OR WARRANT THAT THE THENA PRODUCT WILL BE ERROR-FREE. THENA IS NOT RESPONSIBLE OR LIABLE FOR ANYNON-THENA PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
6.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH THENA WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY THENA. THE BETA PRODUCTS ARENOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. THENA DOES NOT PROVIDE ANY INDEMNITIES,SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR THENA MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS ATANY TIME.
7.1 Indemnity by Thena. Thena will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Thena Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Thena) in connection with any such Claim; provided that (a) Customer will promptly notify Thena of such Claim, (b) Thena will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Thena may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Thena in connection therewith. If the use of the Thena Product by Customer has become, or in Thena’s opinion is likely to become, the subject of any claim of infringement, Thena may at its option and expense (i) procure for Customer the right to continue using and receiving the Thena Product as set forth hereunder; (ii) replace or modify the Thena Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii)are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Thena will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Thena Product by Customer not in accordance with this Agreement; (C) modification of the Thena Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Thena Product with other products or services where the Thena Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Thena’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
7.2 Indemnification by Customer. Customer will defend Thena against any Claim made or brought against Thena by a third party arising out of the Excluded Claims, and Customer will indemnify Thena for any damages finally awarded against Thena (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Thena will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided thatCustomer may not settle any Claim without Thena’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Thena of all liability) and (c) Thena reasonably cooperates with Customer in connection therewith.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS,UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OFTHE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12)MONTHS PRECEDING THE CLAIM.
9.1 Term. The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
9.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicableOrder Form upon written notice in the event (a) the other party commits any material breach of thisAgreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.3 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any ConfidentialInformation of such party in the other party’s possession or control.
10.1 Insurance. Thena shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’sLiability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Thena Product, with coverage limits of not less than $2,000,000 per claim or per occurrence/$2,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.
10.2 Publicity. Customer agrees that Thena may refer to Customer’s name and trademarks in Thena’s marketing materials and website; however, Thena will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
10.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation here of will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Amendment; Waiver. Thena reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions,Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The section headings used herein are for convenience only and shall not be given any legal import.
10.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by theUnited Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided byCustomer when Customer creates its Thena Product account. Notices to Thena must be sent to the following:
Pivoting Owl, Inc.
Pivoting Owl Inc
548 Market St, San Francisco, CA 94104
10.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Thena with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Thena, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement
10.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control(“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g.,denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.11 Government Terms. Thena provides the Thena Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of thisAgreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Thena Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Thena Product was developed fully at private expense.
10.12 Interpretation. For purposes hereof, “including” means “including without limitation”.
The Thena Product will be Available 99.5% of the time, measuredly on a calendar monthly basis (the “Availability Commitment”). “Availability” means that the Thena Product is available to be used to support, service and communicate with Customer’s customers. Availability measures will not include downtime resulting from:
● Upgrades: Customer will receive prior notice by email of Thena’s upgrade windows, which will be scheduled to the extent feasible. Downtime due to upgrades will not exceed 2 hours per month.
● Pre-scheduled maintenance periods: Customer will receive at least 24 hours prior notification bye mail of pre-scheduled maintenance periods. Downtime due to pre-scheduled maintenance will not exceed 2 hours per month.
● Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable efforts basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the Thena infrastructure.
The Availability Commitment does not apply to any downtime of the Thena Product that results from:
● Account suspension or termination due to Customer’s breach of the Agreement;
● Disengagement of functionality of the Thena Product due to Customer’s request;
● Force Majeure Events; or
● Customer’s or its service provider’s equipment, software or other technology.
Thena will provide Customer with reports on Availability upon request.
If Thena fails to achieve the above Availability for the Thena Product, Customer may claim a credit based on a monthly pro-rated amount of the annual subscription fee, as provided below.
Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations. To receive a credit, a Customer must file a claim for such credit within five (5) days following the end of the month in which the Availability Commitment was not met by contacting Thena email@example.com with a complete description of the downtime, how Customer was adversely affected, and for how long. The credit remedy set forth in this Service Level Agreement is Customer’s sole and exclusive remedy for the unavailability of the Thena Product.
Thena live technical support business hours will be available 24 hours for 5 working days between Monday to Friday. Technical support can be contacted via email at firstname.lastname@example.org or via shared channels in the customer communication platform.
Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January1). Limited technical support will be available during the hours listed above during Thena holidays. The current Thena holidays are set forth below:
● Presidents Day (third Monday of February)
● Memorial Day (last Monday of May)
● Independence Day (July 4)
● Labor Day (first Monday of September)
● Thanksgiving Day (fourth Thursday in November)
● Christmas Eve (December 24)
● New Year’s Eve (December 31)