This Thena Customer Agreement (this “Agreement”) is entered into by and between Pivoting Owl, Inc., a Delaware corporation (“Thena”), and Customer, and shall apply to Customer’s use of Thena’s SaaS-based [customer communication platform] (the “Thena Product”) ordered by Customer pursuant to one or more ordering documents entered into between Customer and Thena or online orders made by Customer that set forth the specific Thena Product and applicable pricing and subscription term thereof ("Order Form"). This Agreement and such Order Forms, which are hereby incorporated into, supplement and form a part of this Agreement, represent the parties’ entire understanding regarding the Thena Product and shall control over any different or additional terms of any purchase order or other non-Thena ordering document, and no terms included in any such purchase order or other non-Thena ordering document shall apply to the Thena Product. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control. “Customer” means the company or other legal entity that entered into an Order Form. You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use the Thena Product.
4. Proprietary Rights:
(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. Confidentiality; Restrictions:
(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 this Agreement 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 the Confidential 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 applicable Order Form.
6. Warranties and Disclaimers:
(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 Order Form 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 ANY NON-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 ARE NOT 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 AT ANY TIME.
7. Indemnification:
(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 that Customer 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.
8. Limitation of Liabilitys:
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 OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
9. Termination:
(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 applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement 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 Confidential Information of such party in the other party’s possession or control.
10. General:
(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’s Liability 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 hereof 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 the United 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 by Customer when Customer creates its Thena Product account. Notices to Thena must be sent to the following:
Pivoting Owl, Inc.
548 Market St, San Francisco, CA 94104, USA
(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 this Agreement. 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.
(10.11)
Interpretation: For purposes hereof, “including” means “including without limitation”.
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