These Master License Terms and Conditions (the "Terms and Conditions") are expressly incorporated into the License Agreement between Secure-IT, Inc., DBA Birdcall ("Birdcall") and Licensee. Birdcall and Licensee are collectively the Parties.
Any payment not received from the Licensee by the due date will accrue late charges at the rate of one and a half percent (1.5%) per annum of the outstanding balance, or the maximum rate permitted by law, whichever is lower, from five (5) days after the date such payment was due until the date paid. If the Licensee's account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Agreement or pursuant to applicable law, and Birdcall, having notified the Licensee in writing, has not received payment within a further ten (10) business days, Birdcall reserves the right to suspend the Service without liability to Licensee, until such amounts are paid in full.
The initial term of this Agreement will be twelve (12) months (the "Initial Term"). The Licensee shall have the right to renew this Agreement for additional Terms of 12 months each (each a "Renewal Term"), up to a maximum of two (2) Renewal Terms, at a maximum annual pricing increase of three (3) percent. The increase will be calculated on the then current ending Subscription Fee pricing for the previous Term. The Initial Term and each Renewal Term shall collectively be the Agreement Term.
Each Party shall have the right to terminate this Agreement without cause upon 30 days' prior written notice. In the event of a material breach of this Agreement then non-breaching Party shall provide 30 days' prior written notice of the alleged breach and allow the breach to be remedied during that time; provided that each Party may terminate this Agreement immediately with no notice required in the event of any breach of the Confidentiality Obligations or the Licensee may terminate this Agreement following any violation by Birdcall of the Licensee's privacy, security, or data protection policies as amended. Upon termination, all fees prepaid but not yet used shall be returned to Licensee and Licensee shall have no further payment obligations to Birdcall. Upon termination, (a) each Party shall cease using the other Party's Confidential Information, (b) each Party shall certify to the other Party within seven (7) business days of the termination that such Party has destroyed or returned to the other Party any of its software, third-party software, Confidential Information and all copies thereof, and (c) Licensee shall cease using the Service. Upon Termination, for no additional cost, Birdcall shall assist the Licensee with the transition of the Licensee's information to another platform or, if requested by the Licensee, provide the Licensee's information to the Licensee in a searchable, usable format.
Licensee shall use the Service for any lawful purpose and in accordance with this Agreement. Licensee is responsible for all its compliance with this Agreement and obligations set forth herein. Licensee shall: (i) have responsibility for the accuracy, quality, and legality of all Licensee Data; and (ii) take reasonable steps to prevent unauthorized access to, or use of, the Service, and notify Birdcall promptly of any such unauthorized access or use. Licensee shall not: (1) use the Service in violation of all applicable laws; (2) in connection with the Service, send or store material it knows to be infringing, obscene, threatening, or otherwise unlawful or tortious, including material that violates privacy rights; (3) knowingly send or store Malicious Code in connection with the Service; (4) knowingly interfere with or disrupt performance of the Service or the data contained therein; or (5) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation.
For purposes of this Agreement:
"Licensee Data" means all information or other data or any type that is provided or has been made accessible by Licensees to Birdcall, including electronic data or information submitted by Licensee to the Service. As between the Parties, Licensee shall retain all right, title and interest (including any and all intellectual property rights) in and to the Licensee Data as provided to Birdcall. Subject to the terms of this Agreement, Licensee hereby grants to Birdcall a limited non-exclusive, worldwide, royalty-free right to use, copy store, transmit and display the Licensee Data, but only to the extent necessary to provide the services.
"Malicious Code" means, without limitation, computer instructions, files, programs or program code, software routines, hardware components, devices or techniques, and combination of the foregoing (including any copy protection key, code clock, drop dead devices, time bomb, virus, Trojan horses, worm, trap door, back door and other harmful code) that can or were designed to affix themselves to, bury themselves within or send instructions to, other files, data, programs or program code codes or instructions, that are designed to (a) permit unauthorized access to software; or (b) disable, delete, modify, damage, erase, or otherwise harm software, hardware or data.
Birdcall will provide the Service in a timely, skillful, professional, and workmanlike manner by qualified personnel exercising care, skill, and diligence consistent with industry standards, and will devote adequate resources to meet its obligations hereunder, in accordance with the terms and conditions of this Agreement and shall make the Services in accordance with the Service Level Agreement, which is incorporated herein as Exhibit A. Birdcall shall ensure that it, and the Services comply with, all applicable laws (included but not limited to privacy and data protection laws applying to citizens of the EU and Singapore). Birdcall will routinely backup all the Licensee Data and use industry standard security measures to maintain Licensee Data in confidence. All storage, backup, and archival media containing Licensee Data shall be: (a) physically stored in a secure area, (b) logically separated from any other Licensee's data, and (c) protected by industry standard encryption methods. Birdcall will take commercially reasonable security measures consistent with commercially available encryption technology and industry standards to protect against unauthorized access to Licensee Data and to maintain the integrity of the Services and Licensee Data. In the event that Birdcall reasonably believes, knows, or should have known that the Services have been compromised, then, as soon as reasonably possible, and in no event more than one calendar day after discovery thereof, Birdcall will provide Licensee with notice of such potential or actual compromise, and correct or cure such compromise, and mitigate any resulting harm or loss and provide Licensee such information including information regarding any potential data breach resulting from such compromise, including logs, data accessed, and accounts impacted.
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 to perform its obligations and grant the rights and licenses 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.
Licensee shall not (i) modify, copy or create any derivative works based on the Service; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service available to any third party, whether in object code or source code form, other than as permitted herein (but the Licensee shall be allowed to use the Service for the benefit of its clients); (iii) frame or mirror any content forming part of the Service, other than on Licensee's own intranets for its own internal business purposes; (iv) reverse engineer, decompile, dissemble, reconstruct or discover any portion of the Service, including but not limited to, any source code, algorithms or software utilized by Birdcall in the provision of the Service; (v) access the Service in order to build any commercially available product or service that will directly compete with the Service; (vi) copy any features, functions, integrations, interfaces or graphics of the Service, except as permitted herein; (v) remove any proprietary notices or legends from the software; (vi) pledge the Service or Birdcall's software or third-party software as collateral or otherwise, or encumber such software with any Lien or security interest; or (vii) remove any product identification, confidentiality, copyright, trademark, or other notice from any of Birdcall's software or Service. Licensee shall use any technical information delivered by Birdcall only for purposes of ensuring "interoperability" and compatibility and shall treat such technical information as Confidential Information (defined below). Any reverse engineering of the Birdcall software shall void any warranties or indemnification obligations of Birdcall and shall automatically release Birdcall from any obligation to provide support services under this or any separate agreement.
Subject to the terms and conditions of this Agreement, Birdcall hereby grants Licensee a non-exclusive, royalty-fee, fully paid-up, non-transferable (except as permitted by this Agreement) worldwide right and license to use the Services subject to the terms and conditions of this Agreement. Birdcall and its licensors own and reserve all rights, titles, and interest in and to the Service and its software, including all Derivative Works and related intellectual property and proprietary rights. No rights are granted or sold to Licensee hereunder. Birdcall may only use anonymized Licensee recordings upon prior written agreement of Licensee, provided that such recordings will be stripped of all personally identifiable information to ensure Licensee and those other persons and entities identified in the recordings are kept private and confidential.
"Artificial Intelligence" or "AI" means any technology (including without limitation computers, software, systems, algorithms, codes, protocols, functions, logic and any other similar machine-based function) that can, for a given set of objectives, generate outputs such as predictions, recommendations, or decisions influencing real or virtual environments, including any updates, enhancements or AI evolutions thereto. Birdcall represents, warrants and covenants to Licensee that any AI used is: (i) non-infringing; (iii) reliable, accurate, unbiased and complete; and (iv) contains no open source software. Further, Birdcall represents, warrants and covenants that it will use commercially reasonable efforts to prevent, identify and mitigate AI hallucinations. Birdcall shall be responsible for all claims arising out of and relating to AI hallucinations and Birdcall shall indemnify Licensee for such claims and loses, provided that Licensee uses the Services in accordance with the Documentation. Any information Licensee provides to Birdcall via AI is considered Licensee Data and shall be owned by Licensee. To the extent the Service incorporates AI, the Parties agree that Licensee shall own: (a) all Licensee Data that may be used in training the Service ("Training Data") or is inputted into the Service ("Input Data"); (b) all outputs generated the Service ("Output Data"); and (b) all Licensee-specific evolutions of the AI ("Licensee AI Evolutions"). To the extent an assignment of the Output Data or Licensee AI Evolutions is needed to permit Licensee to obtain ownership of the right, title and interest in and to the Output Data or Licensee AI Evolutions, Birdcall hereby assigns and transfers Birdcall's right, title and interest in and to the Output Data and Licensee AI Evolutions to Licensee.
Except with the disclosing party's prior written permission, a receiving party, one who receives Confidential Information and/or trade secrets from the disclosing party, shall not (i) use any Confidential Information, intellectual property, or trade secrets of the disclosing party for any purpose other than as expressly permitted by this Agreement or (ii) disclose any Confidential Information to any third party other than the receiving party's personnel and agents who (x) have a substantive need to know the Confidential Information for the permitted purpose under this Agreement, (y) have been advised of the confidential and proprietary nature of such Confidential Information, and (z) who are also bound (consistent with, and no less stringent, the restrictions in this Agreement) to protect the Confidential Information. Each receiving party agrees to protect the Confidential Information and trade secrets of the disclosing party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. If a receiving party is compelled by law to disclose Confidential Information and/or trade secrets of the disclosing party, the receiving party shall promptly provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure. If the receiving party is nevertheless required to disclose the disclosing party's Confidential Information, it will furnish only the information legally required to be disclosed.
"Confidential Information" means (a) any software utilized by Birdcall in the provision of the Service and its respective source code; (b) Licensee Data; (c) any analysis of Licensee Data produced by use of the Service; (d) Feedback Materials, (e) each party's confidential business or technical information, including but not limited to the training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, customer lists, vendor lists, pricing information, strategic alliances, marketing strategies, and planned new products and services) and other information which it considers to be proprietary and/or confidential (f) any other information that is designated by the disclosing party as "confidential" or "proprietary" or the receiving party knows or should reasonably know is confidential or proprietary; and (g) the terms, conditions and pricing of this Agreement.
The receiving party's obligations shall survive and continue in effect indefinitely with respect to any Confidential Information that is a trade secret under applicable law.
Each Party is responsible for their own compliance with all applicable laws. Such applicable laws include but are not limited to those pertaining to intellectual property rights, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, anti-corruption or anti-bribery laws or other applicable laws, statutes, rules, or regulations of the United States or of those of any jurisdiction into which any email addresses are collected or Communication sent. Licensee acknowledges that CAN SPAM Act of 2003 prohibits the transmission of unsolicited messages to unknown individuals in bulk, or to individuals who have opted out of receiving such messages or content. Birdcall may take remedial action should Licensee violate CAN SPAM, the Telephone Consumer Protection Act, or other applicable law and such remedial action may include suspension of Services provided under this Agreement. Birdcall shall have the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content in the Communication in order to determine compliance with this Agreement or applicable law; however, Birdcall shall not be responsible for nor shall it have any obligation to monitor the Communication or any content in the Communication. Licensee represents that it has or will obtain the necessary consents and authorization to permit Birdcall to access and use the Licensee Data shared for the purposes of performing the Services.
Licensee acknowledges that any use of the Birdcall software and Services in a manner inconsistent with this Agreement could cause immediate irreparable harm to Birdcall or its suppliers for which there is no adequate remedy at law. Licensee agrees that Birdcall or its suppliers shall be entitled to seek immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by Licensee. The Parties agree and stipulate that Birdcall shall be entitled to seek such injunctive relief without the posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $500 shall be sufficient.
Each Party shall indemnify the other Party from that portion of any claims made or brought by a third party: (i) arising from or based upon a material breach of this Agreement by such Party, its employees, agents, and/or any authorized parties; or (ii) alleging that, in the case of Licensee, the Licensee Data, and in the case of Birdcall, the Service, infringes, violations or misappropriates the rights of, or has caused harm to a third party; provided, however, that the indemnified party: (a) promptly gives written notice of the claim to the indemnifying party and (b) provides to the indemnifying party, at the indemnifying party's cost, all reasonable assistance; (c) does not make any admission in respect of the claim without the indemnifying party's prior written consent; and (d) allows the indemnifying party (at the indemnifying party's option) to assume control of defending and/or setting such claim.
EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, LICENSEE DATA, FEEDBACK MATERIALS, AND/OR RELATED DOCUMENTATION. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED IN CONNECTION WITH THE PROVISION AND USE OF THE SERVICE.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party's reasonable control and occurring without that Party's fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Birdcall or Licensee employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.
Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
This Agreement, the incorporated order form, any and all exhibits and addenda hereto, constitutes the entire agreement between the Parties. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
If any portion hereof is found to be void or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets not involving a direct competitor of the other Party.
