TERMS AND CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY AFFECTLAYER, INC. (“AFFECTLAYER”). BY CHECKING “I ACCEPT THE TERMS AND CONDITIONS “, YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER” OR “YOU”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE SERVICES AGREEMENT CONSISTING OF ONE OR MORE ONLINE OR PRINTED ORDER FORMS REFERENCING THESE TERMS (“ORDER FORM”), THIS PARAGRAPH AND THESE TERMS (THE “AGREEMENT”) WITH RESPECT TO THE SERVICES BEING PROVIDED BY AFFECTLAYER. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND AFFECTLAYER, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY AFFECTLAYER) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT.  PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S INSTALLATION OR USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT CHECK “I ACCEPT THE TERMS AND CONDITIONS” YOU WILL HAVE NO RIGHT TO USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

1.               SERVICES

1.1             Subject to the terms and conditions of this Agreement, AffectLayer will use commercially reasonable efforts to provide Customer with access to the Services described in the applicable Order Form.  The Services are subject to modification (including, without limitation, to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements) from time to time at AffectLayer’s discretion.

1.2             Through the Services, AffectLayer may obtain access to a set of data provided by Customer in the course of the Customer’s use of the Service (“Customer Data”).  Through the Services, Customer may obtain access to a set of data or a report provided by AffectLayer in the course of the Customer’s use of the Service (“Report”).  Reports are considered part of the Services for purposes of this Agreement.

2.               RESTRICTIONS AND RESPONSIBILITIES

2.1             Customer represents and warrants that: (i) it will not use the Services or any product thereof in any manner that violates any law or governmental regulation; (ii) it will prevent any unauthorized use of or access to the Services and promptly notify AffectLayer of any such use or access; and (iii) Customer Data  (including Customer’s provision thereof to AffectLayer and AffectLayer’s use thereof) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (except to the extent applicable law prohibits such a restriction); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own internal business purposes (including providing any Report to a third party); or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations.

2.2             Customer may be permitted, through the functionality of the Services, to access the Services through a third party platform or to link its Services account with its third party platform account (each such platform, a “Third Party Platform”).  If Customer accesses the Services through a Third Party Platform, it understands and agrees that information in its account on the Third Party Platform may be transferred or made available to AffectLayer during the term of this Agreement (“Third Party Platform Information”), and information in its AffectLayer account may be transferred or made available in its Third Party Platform account (and/or to the third party that controls the Third Party Platform), and Customer hereby consents to all such transfers and to AffectLayer using and exploiting Third Party Platform Information  in connection with its provision of the Services (and as described in Section 3.5).

2.3             Customer will cooperate with AffectLayer in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as AffectLayer may reasonably request.  Customer’s use of the Services may be limited to a certain number of users, as described in the Order Form; Customer will establish a username and password (or any other means required by AffectLayer) for verifying that only designated employees of Customer have access to the Services as users under Customer’s account unless another means of verification is explicitly provided on the Order Form. Customer will be responsible for maintaining the security of all Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer accounts with or without Customer’s knowledge or consent.

2.4             Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”).  Customer may change the individual designated as Primary Contact at any time by providing written notice to AffectLayer.  The Primary Contact will be responsible for the transmission of all Customer Data to AffectLayer.  AffectLayer will disregard and take no action regarding Customer Data submitted by anyone other than the Primary Contact.

 

3.               PRIVACY AND CONFIDENTIALITY

3.1             Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

3.2             The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information (except as allowed in subsection (ii)), (ii) to give access to such Proprietary Information solely to its employees and contractors with a need to have access thereto for purposes of this Agreement, (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information, and (iv) not to use such Proprietary Information except to exercise its rights and fulfill its obligations under this Agreement.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.  Customer Data shall be considered Proprietary Information of Customer.

3.3             Customer acknowledges that AffectLayer does not wish to receive any Proprietary Information from Customer that is not necessary for AffectLayer to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, AffectLayer may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

3.4             For clarity, the Services (including any Reports) are also AffectLayer’s  Proprietary Information, as are any Feedback (defined below) and the terms of this Agreement (which, in the case of Feedback and these terms (including any pricing terms), shall be deemed disclosed by AffectLayer, and to which the exceptions set forth in Section 3.2(b) and (d) do not apply).

3.5             Notwithstanding anything to the contrary, AffectLayer may de-identify any information collected from Customer in the course of this Agreement (including any Third Party Platform Information), and use and freely exploit such information, provided that AffectLayer aggregates and/or de-identifies such information prior to disclosure to a third party such that the information does not individually identify Customer or Customer’s clients (except that AffectLayer may disclose individually identifiable information to its third party contractors who are subject to confidentiality obligations).

4.               INTELLECTUAL PROPERTY RIGHTS

4.1             Except as expressly set forth herein, AffectLayer alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer relating to the Services (“Feedback”), and Customer hereby makes all assignments necessary to accomplish the foregoing with respect to Feedback.

4.2             Customer hereby grants AffectLayer a non-exclusive, worldwide, royalty-free, perpetual and irrevocable license to use all Customer Data as permitted by this Agreement.

4.3             Pursuant to the terms and conditions of this Agreement, Customer is hereby granted (1) a limited, non-exclusive, nontransferable, revocable right to use the Services (excluding Reports) for its internal purposes only solely for the term of the Agreement, and (2) a limited, non-exclusive, nontransferable, perpetual right to use Reports for its internal purposes only.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services (including any Reports), or any intellectual property rights.  All rights not expressly granted herein are reserved by AffectLayer.

5.               FEES AND PAYMENT; TAXES

5.1             The Services are provided on a subscription basis.  The term of Customer’s subscription is set forth in the applicable Order Form (the “Subscription Term”).  Subscription fees for each Subscription Term (the “Subscription Fees”) must be paid in full on or before the first day of the applicable Subscription Term.  Customer shall pay all such Subscription Fees via the payment method set forth in the applicable Order Form.

5.2             AffectLayer may automatically bill Customer’s payment method on or about the first day of each Subscription Term if Customer’s payment method allows for such automatic billing, and Customer has not opted out of such automatic billing in writing. To opt out of such automatic billing, Customer can email AffectLayer at: [email protected]. AffectLayer reserves the right to change the timing of such automatic billing.

5.3             Customer is responsible for keeping all payment information accurate and up-to-date; failure to do so may prevent AffectLayer from collecting amounts due hereunder.  AffectLayer may suspend access to the Services or any portion thereof if Customer is late in making any payment when due.  Late payments will bear interest at the rate of 1.5% per month (or the highest rate allowed by applicable law, whichever is lower) until paid.  All amounts paid hereunder are non-refundable and non-creditable.

5.4             Customer is responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associates with its activity in connection with the Services.

6.               TERM AND TERMINATION; SUSPENSION

6.1             The term of this Agreement shall be as described in the applicable Order Form, unless earlier terminated as described in this Section 6 (the “Term”).  The Order Form may provide that the initial term of this Agreement (“Initial Term”) will automatically renew for an additional term that is equal in length to the Initial Term (and continue to automatically renew in the same manner thereafter) (each, a “Renewal Term”); either party may prevent such auto-renewal by giving the other party thirty (30) days written notice of its intent not to renew prior to the end of the then-current Initial or Renewal Term (as applicable).

6.2             AffectLayer may also suspend or limit Customer’s access to or use of the Service if Customer’s use of the Service results in (or is likely to result in, in AffectLayer’s discretion) damage to or material degradation of the Service which interferes with AffectLayer’s ability to provide access to the Service to other customers. If AffectLayer knows that Customer’s use is likely to result in such damage or degradation, AffectLayer will use reasonable efforts to (a) provide Customer with notice and (b) work with Customer, prior to any such damage or degradation in order to resolve the issue without resorting to suspension or limitation. AffectLayer may reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.

6.3             Either party may terminate this Agreement for a party’s material breach of this Agreement, upon fifteen days’ prior written notice to the non-breaching party (provided such breach remains uncured at the end of such fifteen (15) days period).  AffectLayer may terminate this Agreement for AffectLayer’s convenience upon thirty days’ prior written notice to Customer. Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease, provided that to the extent any Report has been provided to Customer hereunder Customer may continue to use such Report for its own internal business purposes, and for no other reason.  The following Sections shall survive any termination of this Agreement: 3, 4.1, 4.2, 4.3 (except for the first sentence thereof), 5 (as it relates to amounts due hereunder incurred prior to termination), 6, 8-10, and 12.

7.               SUPPORT

AffectLayer offers email-based support.  Customer may contact the support desk at [email protected]  AffectLayer does not make any promises regarding how quickly it will respond to a request for support, or that it will be able to fix any problems Customer may be having.   Any suggestions by AffectLayer regarding use of the Services shall not be construed as a warranty.

 

8.               WARRANTY DISCLAIMER

THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.  AFFECTLAYER HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9.               LIMITATION OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL AFFECTLAYER (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, (II) THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, (III) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) ONE-THOUSAND US DOLLARS ($1000) OR (B) THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO AFFECTLAYER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; IN EACH CASE WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT AFFECTLAYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.             INDEMNIFICATION

Customer shall defend, indemnify, and hold harmless AffectLayer, its affiliates, and each of its, and its affiliates, employees, contractors, directors, supplier and representatives, from and against any liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, arising from Customer’s actions in connection with any breach of this Agreement and/or unauthorized use of the Services or Software, including any claim that such actions violate any applicable law or third party right.

11.             U.S. GOVERNMENT MATTERS

11.1           Notwithstanding anything else, Customer may not provide to AffectLayer or any other person (whether through the Services or any other means), or export or re-export, or allow the export or re-export of the Services, any data or information, or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.

11.2           As defined in FAR section 2.101, any software and documentation provided by AffectLayer are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

12.             MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Affect layer’s prior written consent; AffectLayer may transfer and assign any of its rights and obligations under this Agreement freely and without consent.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. AffectLayer reserves the right to change this Agreement at any time, but if AffectLayer does, AffectLayer will bring it to Customer’s attention by placing a notice on the https://www.chorus.ai/terms/ website, by sending Customer an email, and/or by some other means. If Customer does not agree with such changes to the Agreement, Customer may reject such changes, provided Customer no longer uses or accesses the Services.  If Customer uses or accesses the Service in any way after a change to the Agreement is effective, that means Customer agrees to all of the changes. Except for changes by AffectLayer as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both Customer and AffectLayer. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind AffectLayer in any respect whatsoever.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  AffectLayer will not be liable for any loss resulting from a cause over which it does not have direct control.  This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions.  Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Without limiting the foregoing, for all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted.  CUSTOMER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, CUSTOMER AND AFFECTLAYER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Customer agrees to participate in press announcements, case studies, trade shows, or other forums reasonably requested by AffectLayer.  AffectLayer is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion (including without limitation in its publicity and marketing materials).