THE CHOOCH LICENSE AGREEMENT (COLLECTIVELY, THIS "AGREEMENT") GOVERNS YOUR ACCESS TO AND USE OF CHOOCH'S APPLICATION PROGRAMMING INTERFACE (THE "API") AND SOFTWARE AS A SERVICE PLATFORM (THE "PLATFORM" AND, COLLECTIVELY WITH THE API, THE "SOFTWARE") AND ANY USER DOCUMENTATION AND/OR VIDEOS RELATED TO THE SOFTWARE (THE "DOCUMENTATION").
BY ACCESSING THE SOFTWARE (THE DATE YOU FIRST ACCESS THE SOFTWARE, THE "EFFECTIVE DATE
"): (I) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT; AND (II) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY
TO ENTER INTO THIS AGREEMENT AND/OR TO ACT ON BEHALF OF AND BIND THE ENTITY YOU REPRESENT.
THOUGH YOUR ACCESS AND USE OF THE SOFTWARE IS GOVERNED BY THE AGREEMENT EFFECTIVE AT THE TIME, CHOOCH MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION. IF CHOOCH MAKES MATERIAL CHANGES TO THIS AGREEMENT,
IT WILL NOTIFY YOU BY EMAIL PRIOR TO THE EFFECTIVE DATE OF THE CHANGES, WHICH SUCH DATE WILL BE DEEMED THE EFFECTIVE DATE FOR PURPOSES OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE YOU’RE YOUR CONTINUED ACCESS OR USE OF THE
SOFTWARE AFTER CHOOCH'S MATERIAL CHANGE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE CHANGED TERMS.
As used in this Agreement, "Chooch" refers to Chooch Intelligence Technologies Co. dba Chooch AI, a Delaware corporation with offices at 3 E 3rd Ave, San Mateo, CA 94401,a Delaware corporation located at and "you," "your," or "Licensee" refers to you as an individual or the entity on whose behalf you have entered into this Agreement
License Grant. Subject to Licensee's compliance with this Agreement, including Licensee's timely payment of all Fees (as such term is defined in Section 3), Chooch hereby grants to Licensee during the Term (as such term is defined in Section 8(a)
) a non-exclusive, non- sublicensable, and non-transferable license to (i) access, use, and make calls to the API in connection with the web or other software services or applications developed by Licensee to interact with the API
") that will communicate and interoperate with the Platform, (ii) access and use the Platform in connection with communicating and interoperating with the API and (iii) use the Documentation, each of (i) through (iii) in
connection with Licensee's internal business operations on its systems, networks and devices and in accordance with the limitations on Licensee's authorized employees or contractors for whom access to the Software and
Documentation has been purchased by Licensee ("
"). Chooch may modify the Software from time to time, so long as such modification(s) do not materially reduce the Software's performance or capabilities. Chooch will have no liability for any damage, liabilities, losses
(including any loss of data or profits), or any other consequences that Licensee, any Authorized User, or any other third party may incur as a result of modifications to the Software in accordance with this
. Licensee shall not, and shall not authorize any Authorized User or third party to, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent,
repackage, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code, object code, or underlying structure, ideas, or algorithms of the Software, in whole or in part; (iv)
remove any proprietary notices from the Software or the Documentation; (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or
other right of any person, or that violates any applicable laws, rules, or regulations (including, without limitation, applicable data privacy laws, regulations, and guidance) (collectively, "
"); (vi) monitor the availability, performance, or functionality of the Software or for any similar benchmarking or competitive purposes; (vii) interfere with or disable any features, functionality, or security controls of the
Software or otherwise circumvent any protection mechanisms for the Software; (viii) create any software or application that replicates or competes with the Software; (ix) combine or integrate the Software with any software,
technology, services, or materials not authorized by Chooch; (x) design or permit any Licensee Application to disable, override, or otherwise interfere with any Chooch-implemented communications to end users; (xi) reveal
Licensee's access key or other credentials to the Software ("
Access Key") to any third party except when consented to in writing by Chooch;
(xii) attempt to cloak or conceal Licensee's identity or the identity of any Licensee Application when calling the API; or (xiii) otherwise access or use the Software except as expressly authorized in this Agreement. Licensee is
solely responsible for maintaining the confidentiality and security of its Access Key. Licensee shall immediately notify Chooch of any security breach of its Access Key and will be fully liable and indemnify Chooch for any
unauthorized use of its Access Key.
Reservation of Rights.
Chooch reserves all rights not expressly granted to Licensee in this Agreement. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement grants to Licensee or any third party, by
implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Software or the Documentation. The Software and Documentation are licensed, not sold, to Licensee.
Suspension of Access
. Notwithstanding anything to the contrary in this Agreement, Chooch may temporarily suspend, or permanently revoke, Licensee's access to any portion or all of the Software if: (i) Chooch reasonably determines that there is a
threat or attack on the Software; (ii) Licensee's use of the Software disrupts or poses a security risk to the Software or to any other customer or vendor of Chooch; (iii) Licensee is using the Software for fraudulent or
illegal activities; or (iv) any vendor of Chooch has suspended or terminated Chooch's access to or use of any third-party services or products required to enable Licensee to access the Software (any such temporary suspension,
Service Suspension" and any such revocation, a "Service Revocation
"). Chooch shall use commercially reasonable efforts to provide written notice of any Service Suspension or Service Revocation to Licensee and, in cases of Service Suspensions, to provide updates regarding resumption of
access to the Software following any Service Suspension. In cases of Service Suspensions, Chooch shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event
giving rise to the Service Suspension is cured. Chooch will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any third party may incur as a
result of a Service Suspension or Service Revocation, and Licensee shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation.
Open Source Software
. At Chooch's sole discretion, certain Software may contain software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser
General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open
Source Initiative (such Software, "
Open Source Software"). Licensee acknowledges that specific terms required by the respective licensor of the Open Source Software may apply to the use of Open Source Software.
Where the parties have agreed to Chooch’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“
”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of the Order Form will govern, except to the extent that the Agreement or SOW, as applicable, expressly states that it supersedes specific language in the Order Form.
. From time to time during the Term, the parties shall discuss and enter into one or more statements of work for the provision of certain additional services other than those explicitly provided for under this Agreement (the
”). To the extent that any Additional Services are to be provided by Chooch to you, the parties shall endeavor to execute a statement of work for such Additional Services. Notwithstanding the foregoing, the parties’
failure to execute a formal statement of work shall in no way relieve your obligation to pay for such Additional Services. All Additional Services shall be governed by this Agreement, unless agreed to in writing by the parties.
Except as specified herein, nothing in this Agreement or in any statement of work shall be construed as a guarantee of future Additional Services outside of the scope of any statement of work. The parties acknowledge that any
services to be provided by Chooch to you, regardless of whether or not set forth in a statement of work, will generally be billed at Chooch’s then-prevailing rates as specified in the Chooch Pricing Sheet.
Responsibilities of the Parties.
Chooch Responsibilities. Chooch will provide to Licensee the support and/or professional services for the Software as set forth on the "support" tab located on the Platform.
Software and Documentation; Training Data.
Licensee is fully responsible and liable for all access and use of the Software and Documentation resulting from access provided by Chooch, whether such access or use is taken under Licensee's Access Key, and all conclusions,
decisions, and actions based on such use. If requested by Chooch, Licensee shall submit to Chooch (whether via web portal, the Software, or otherwise) the requested data and/or other information as required for the performance and
functionality of the Software (including, without limitation, to train the Software), in the form and format requested by Chooch (collectively, "
Licensee is fully responsible and liable for the Licensee Application. Licensee shall monitor the use of any Licensee Application for any activity that violates Applicable Law and/or any terms or conditions of this Agreement.
Licensee will protect all end points in the Licensee Application using industry-standard security measures. Licensee is solely responsible for posting any privacy notices and obtaining any consents from end users required under
Applicable Law for their use of any Licensee Application.
Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users in connection with their use of the Software and/or Licensee Application, and any act or omission by an
Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee.
Fees. In consideration of the grant in Section 1, Licensee will pay to Chooch the monthly fees billed by Chooch to Licensee (the "Fees
") within thirty (30) days of the date of invoice. All Fees are non- refundable and non-cancelable. In addition to Chooch's suspension or revocation rights in Section 1(d), Chooch may suspend or revoke Licensee's
access to the Software if Licensee is ten (10) or more business days past due on Fees.Please see the Chooch Pricing Sheet for a list of Chooch’s current Fees.
TaxesThe Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Licensee will be responsible for payment of all such taxes (other than taxes based on Chooch’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Chooch Solution to Licensee. Licensee will make all payments of Fees to Chooch free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Chooch will be Licensee’s sole responsibility, and Licensee will provide Chooch with official receipts issued by the appropriate taxing authority, or such other evidence as the Chooch may reasonably request, to establish that such taxes have been paid.
InterestTAny amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
Confidential Information. "Confidential Information" means any information previously or hereafter disclosed by or on behalf of one party (the "Disclosing Party") to the other party (the "Receiving Party
"), either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, business plans, customer data, customer lists, customer names, designs, documents, drawings,
engineering information, financial analysis, hardware configuration information, the Disclosing Party's Intellectual Property, inventions, market information, marketing plans, processes, products, product plans, research,
services, specifications, software, source code, trade secrets or any other information that the Disclosing Party identifies as "confidential," "proprietary" or some similar designation or that
reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information also includes information disclosed to the
Disclosing Party by third parties and all notes, reports, analyses, compilations, studies and other materials prepared by the Receiving Party or its representatives (in whatever form maintained, whether documentary, electronic or
otherwise) containing, reflecting or based upon, in whole or in part, any such information or reflecting or based upon, in whole or in part, any such information or reflecting such party's review or view of the Disclosing Party
or the Confidential Information. Without limiting the foregoing, the Software is Confidential Information of Chooch.
. Confidential Information shall not, however, include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known and made generally available in
the public domain, (ii) or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, which source is not known by the Receiving Party after reasonable investigation to be
subject to a contractual, legal or fiduciary obligation prohibiting such disclosure, in each case as evidenced by the written records of the Receiving Party, or (iii) is independently developed by the Receiving Party without use
of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party's possession.
The Receiving Party agrees that it shall use the Disclosing Party's Confidential Information solely for the purpose of evaluating the Software and shall maintain the confidentiality of the Disclosing Party's Confidential
Information with at least the same degree of care that it uses to protect its own Confidential Information, but in any event shall use at least commercially reasonable measures to protect the confidentiality of and avoid
disclosure of the Disclosing Party's Confidential Information. The Receiving Party will keep the Disclosing Party's Confidential Information confidential and will not disclose any of the Disclosing Party's Confidential
Information to employees or to third parties;
, that the Receiving Party may disclose such Confidential Information to its directors, officers, or employees who need to know such Confidential Information for the purpose of evaluating the Software and have agreed to abide by
or are otherwise subject to non-disclosure terms at least as protective of the Disclosing Party's Confidential Information as those set forth herein. The Receiving Party also agrees to only make such copies of Confidential
Information as are necessary to evaluate the Software. The Receiving Party will reproduce the Disclosing Party’s proprietary rights and confidentiality notices on any such authorized copies in the same manner in which such
notices were set forth in or on the original. The Receiving Party will promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party's Confidential Information.
Disclosures Required by Applicable Law or Court Order.
In the event the Receiving Party is required by Applicable Law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the Disclosing Party's
Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing of the existence, terms, and circumstances surrounding such required disclosure so that the Disclosing Party may seek a protective
order, or have the Receiving Party seek such protective order on its behalf, or other appropriate relief from the proper authority. The Receiving Party will cooperate with the Disclosing Party in seeking such order or other
relief. If the Receiving Party is nonetheless required to disclose the Disclosing Party's Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise
all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible.
Return of Confidential Information.
All documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party and all copies thereof shall be and remain the property of the
Disclosing Party and shall be promptly returned to the Disclosing Party (or, in the cases of notes or abstracts, destroyed or permanently deleted) upon the earlier of (i) the Disclosing Party's written request and (ii)
termination or expiration of this Agreement;
provided, however, that nothing contained herein shall require the destruction, deletion or modification of any backup electronic media made pursuant to archival processes in the ordinary course of business; provided, further, that such backup tapes or other archived media shall only be accessible by information technology personnel and shall not be accessed or used for any purpose by either party other than as permitted hereunder.
Licensee acknowledges that, as between Chooch and Licensee, Chooch (or its licensors, as applicable) owns all right, title and interest in and to the Software and Documentation, including all machine learning (including machine
learning algorithms), predictive information and/or analytics, and all data and information generated by Licensee's evaluation, testing, and/or other use of the Software (including system performance data and data and/or
information submitted to, collected by, or generated in connection with Licensee's use of the Software) and all Intellectual Property in the foregoing (collectively, the "
Chooch IP"). For purposes of this Agreement, "Intellectual Property
" means all worldwide rights in and to intellectual property, including, without limitation, rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and
attribution, whether or not protected by patents or copyrights, and including, without limitation, patent applications, patents, trade secret rights, copyrights, trademarks, and other exclusive or non-exclusive rights pertaining
to intellectual property.
. If Licensee or any of its Authorized Users submits, orally or in writing, suggestions or recommended changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any
comments, questions, suggestions, or the like ("
"), Chooch is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Licensee hereby assigns to Chooch, on Licensee's behalf and on behalf of its
Authorized Users and/or agents, all right, title, and interest in, and Chooch is free to use, without any attribution or compensation to any party, any Intellectual Property contained in the Feedback, for any purpose whatsoever,
although Chooch is not required to use any Feedback.
Notwithstanding Section 5(a), Chooch acknowledges that, as between Chooch and Licensee, Licensee owns all right, title and interest in and to the Training Data and all Intellectual Property therein. Licensee hereby grants to
Chooch during the Evaluation Period a non-exclusive, fully paid up, royalty-free, worldwide right and license to access, use, modify, distribute, reproduce, create derivative works of, and/or otherwise exploit such Training Data
in connection with training the Software (including, without limitation, to generate machine learning (including machine learning algorithms) and other predictive information and/or analytics based on such Training Data). Licensee
represents and warrants that all Training Data has been collected in compliance with all Applicable Law and that Licensee owns, or otherwise has the right to disclose to Chooch, all Training Data.
Chooch shall maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of Licensee Information as required under Applicable Privacy Laws (“Data Safeguards
”). During the Term, Chooch will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Licensee Information. Chooch will periodically maintain archives and back-ups of Licensee Information in accordance with Chooch’s generally applicable disaster recovery and business continuity procedures and industry standards. Licensee Information may be stored on media or hardware containing other Chooch Licensees’ data both during and after the Term, provided such media and hardware are subject to the Data Safeguards.
Audits. No more than once per calendar year, during the Term and for one (1) year thereafter, and upon fifteen (15) business days’ prior notice from Licensee, Chooch will provide Licensee or its designee with access to information so that Licensee may examine, assess, and evaluate the Data Safeguards.
Data Processing Agreement.
Before providing to Chooch or enabling Chooch to Process any Personal Data that is subject to any Applicable Privacy Laws, Licensee will enter into a Data Processing Agreement (“DPA
”) with Chooch. If Licensee has not entered into such DPA, Licensee represents, warrants and covenants that no Personal Data Processed by Chooch under this Agreement is subject to Applicable Privacy Laws. Any Personal Data that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
Representations and Warranties.
Of Each Party. Each party hereby represents, warrants, and covenants to the other party that:
it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) the execution of this Agreement and the performance by such party of its obligations and
duties hereunder, do not and shall not violate any agreement to which such party is otherwise bound.
. Chooch warrants that for a period of thirty (30) days from the delivery of the Software, the Software shall substantially perform the material functions described in the Documentation, when used in accordance with such
Documentation. The sole liability of Chooch (and its suppliers/licensors), and Licensee's sole remedy, for any failure of the Software to conform to the foregoing warranty, is for Chooch to do one of the following (at
Chooch's sole discretion): (i) modify, or upgrade, the Software so that it conforms to the foregoing warranty; (ii) replace Licensee's copy of the Software with a copy that conforms to the foregoing warranty; or (iii)
terminate the license with respect to the non-conforming Software and refund any Fees paid by Licensee for such non-conforming Software. All warranty claims must be made by written notice to Chooch on or before the expiration of
the warranty period.
Disclaimer of Warranties
. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6 ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND CHOOCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CHOOCH SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CHOOCH MAKES NO WARRANTY OF ANY KIND
THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK
WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Term and Termination.
Term. This Agreement will begin on the Effective Date and continue until the one-year anniversary of the Effective Date (the "Initial Term") and will automatically renew for consecutive one-year terms (each, a "Renewal Term" and together with the Initial Term, the "Term
"), unless either party notifies the other party in writing at least thirty (30) days before expiration of the Initial Term or the then-effective Renewal Term of its intention to terminate this Agreement.
. Either party may terminate this Agreement on the other's material breach, if such material breach remains uncured for thirty (30) days after the breaching party's receipt of notification thereof from the non-breaching
Effects of Termination
. Upon expiration or earlier termination of this Agreement, the license granted under Section 1 will also terminate and Licensee will cease using and delete, destroy, or return all copies of the Software and Documentation and
certify in writing to Chooch that the Software and Documentation has been deleted or destroyed. This
Section 8(c) and Sections 2(b), 3, 4, 5, 7, 9, 10, and 11 will survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the termination or expiration of this Agreement.
. Licensee will indemnify, defend, and hold harmless Chooch and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including
attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding in connection with (a) Licensee's or Licensee's Authorized Users' use or misuse of the Software, (b) Licensee's or
Licensee's Authorized Users' breach of this Agreement, and/or (c) any Licensee Application, including any end user's use thereof. In the event Chooch seeks indemnification or defense from Licensee under this provision,
Chooch shall promptly notify Licensee in writing of the claim(s) brought against Chooch for which Chooch seeks indemnification or defense; provided, that failure to promptly notify Licensee of such claim(s) will not reduce or
relieve Licensee's indemnification obligations under this
except to the extent Licensee can demonstrate that such failure materially prejudiced the defense and/or settlement of such claim(s). Chooch reserves the right, at its option and in its sole discretion, to assume full
control of the defense of any claim(s) with legal counsel of Chooch’s choice. Licensee may not, without Chooch's prior written consent, enter into any third-party agreement, which would, in any manner, affect
Chooch’s rights, constitute an admission of fault by Chooch or bind Chooch in any manner.
Limitation of Liability
. IN NO EVENT WILL CHOOCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A)
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE,
INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CHOOCH WAS ADVISED OF THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CHOOCH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES.
Amount of Damages
. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY LICENSEE TO CHOOCH DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CHOOCH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
Basis of the Bargain
. The parties agree that the limitations of liability set forth in this Section (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
. From time to time, Chooch may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind and may be modified or discontinued at Chooch’s sole discretion. The provisions of this section apply with full force to such features or tools.
. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, and representations and
warranties, whether written or oral, with respect to the subject matter of this Agreement.
. Neither party shall issue a press release or other public statement regarding the relationship of the parties or this Agreement without the prior written consent of the other party. Notwithstanding the forgoing, Licensee agrees
that Chooch may (and Licensee hereby grants Chooch a non-exclusive license to) include Licensee’s name and logo on Chooch’s website and marketing materials.
. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic mail, facsimile, delivered by overnight delivery service, mailed by certified or
registered mail, postage prepaid, return receipt requested, and addressed to the party's address as listed in this Agreement. If notice is given in person or by courier, it shall be effective upon receipt; if notice is given
by confirmed email or facsimile during normal business hours of recipient, it shall be effective upon receipt (or the next business day if after normal business hours); if notice is given by overnight delivery service, it shall be
effective two (2) business days after deposit with the delivery service; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the state of California, without regard to its choice or conflict of laws provisions.
No Third-Party Beneficiaries. Nothing herein is intended or shall be construed to confer upon any person or entity other than the parties and their successors or assigns, any rights or remedies under or by reason of this Agreement.
No Assignment. Neither this Agreement, nor any rights or obligations hereunder may be assigned, delegated or conveyed by either party without the prior written consent of the other party.
Export. Licensee agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Chooch, or any products utilizing such data, in violation of the United States export laws or regulations.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Compliance with Law. Licensee will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Chooch Solution, Reports and Documentation.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
CHOOCH AI DEFINITIONS
AGREEMENTCapitalized terms will have the meanings set forth in this section, or in the section where they are first used.
"Access Protocols"means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Licensee or any Authorized Users to access the Chooch Solution.
"Applicable Privacy Laws"means, to the extent applicable to the Services, all worldwide data protection and privacy laws and regulations, including where applicable, the California Consumer Privacy Act Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation, Regulation (EU) 2016/679 (including as further amended or modified) (“GDPR”), the UK Data Protection Act 2018, and any U.S. state or national data protection laws as superseded, amended or replaced.
"Authorized User"means each of Licensee’s employees, contractors, subcontractors or agents authorized by Licensee to access the Software pursuant to Licensee’s rights under this Agreement.
"Chooch API"means Chooch’s suite of computer vision application programming interfaces, including the General Recognition API, Custom Image Recognition API, Custom Object Recognition API, and Licensee Facial Recognition and Authentication API, each as defined in the Documentation.
"Chooch Cloud AI"means the Chooch cloud-based inference engine powered by the Chooch API.
"Chooch Edge AI"means the inference engine generated by Chooch Cloud AI and powered by the Chooch API that can be remotely deployed to Edge Devices. Chooch Edge AI deployments are remotely managed and can be updated from the Platform.
"Chooch Materials"means the Chooch Solution, System Data, Documentation and Reports, and all worldwide intellectual property rights in and to each of the foregoing but excluding Licensee Information.
"Chooch Model"means any pre-trained artificial intelligence (“AI”) machine learning models or datasets that are available for public use or trained for Licensee use cases using publicly available data.
"Chooch Solution"means the Platform and Software.
"Licensee Application"means a web or other software service or application developed by Licensee to interact with the Chooch API.
"Licensee Information"means information provided, entered or uploaded for use by or with the Software by Licensee or its Authorized Users. Licensee Information includes Licensee Training Data.
"Licensee Model"means any custom-built and AI object, image, or facial recognition machine learning models, algorithms, datasets, and other predictive information and/or analytics based on or trained using Licensee Training Data.
"Licensee Training Data"means any image data and annotations submitted by Licensee or an Authorized User to Chooch (whether via the Platform, the Software or otherwise) to train the Software and create Licensee Models.
"Documentation"means the then-current Chooch-provided documentation relating to the features, functions, and use of the Software.
"Edge Device"means any hardware component owned and used by Licensee to run machine learning models locally within Licensee’s environment.
"Intellectual Property Rights"means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
"Order Form"means an order form that is based on the template in Exhibits, is signed by both parties, and references this Agreement.
"Personal Data"means any personal data or personally identifiable information provided by or collected from an Authorized User in connection with such Authorized User’s use of the Chooch Solution that is: (A) nonpublic personal information, (B) information covered by state or federal law which requires the protection of information related to natural persons, (C) other personal information identifiable to a natural person protected now or in the future by applicable state or federal law, or (D) to the extent that the GDPR applies, any information relating to an identified or identifiable natural person.
"Platform"means the Chooch software-as-a-service software, dashboard and platform identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface (or the interface of any integrated service, including, without limitation, connected communications or document tools), together with any relevant user instructions, support, onboarding and Licensee success materials and related user materials and documentation.
"Processing"(including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
"Professional Services"means professional services provided by Chooch to Licensee as described in any Order Form (as may be further elaborated in any statement of work).
"Reports"means results, reports, materials, and documentation made available to Licensee as part of the Services, including through the Platform.
"Services"means any services provided by Chooch to Licensee under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Chooch Solution and the Professional Services, if any.
"Software"means the Chooch API, Chooch Cloud AI or Chooch Edge AI, as applicable, Chooch Models, Licensee Models, including all machine learning models and algorithms, and any other apps or add-ons identified in the applicable Order Form for which Chooch is providing the Services.
"System Data"means all predictive information and/or analytics and all data and information generated by Licensee’s evaluation, testing and/or other use of the Chooch Solution, including, without limitation, system performance data and any other data and/or information generated in connection with Licensee’s use of the Chooch Solution. For the avoidance of doubt, System Data does not include Licensee Information.