Popl Teams - Software as a Service Terms of Service
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1. AGREEMENT
1.1. Agreement: These Popl Co Terms of Service (“Agreement”) are entered into by and between Popl Co (“Company”) and the entity (“Customer”) as defined in an ordering document as executed by Company and Customer (“Order Form”). Company and Customer are each referred to herein individually as a "Party" and collectively as the "Parties”.
1.2. Services: Subject to this Agreement, Company will provide Customer with the “Services” as defined in the Order Form.
1.3 Support: Subject to this Agreement, Company will provide Customer with support services and service levels in accordance with the terms set forth in the exhibits to the Order Form.
1.4 Users: Customer authorizes certain employees, contractors, or other individuals to access and use the Services, including the Mobile App (defined in Section 2.1.1), on Customer's behalf, subject to the terms of this Agreement (“Authorized Users").
1.5 Modifications: From time to time, Company may modify this Agreement. Unless otherwise specified, changes become effective for Customer upon renewal of Customer's current Order Form or upon entry into a new Order Form. If Company specifies that changes to the Agreement will take effect before Customer's next renewal or new Order Form (such as for legal compliance) and Customer objects to such changes, Customer may terminate the applicable Order Form by giving Company written notice and as its sole remedy receive a refund of any fees Customer has prepaid for use of the applicable Services for the terminated portion of the Term, commencing on the date Company receives the notice of termination.
2. SERVICES
2.1. Mobile Device App
2.1.1. Installed Software: The Services include a mobile application ("Mobile App") that provides Authorized Users with functions, including but not limited to scanning event badges, business cards, and QR codes, and enriching, organizing, and managing the resulting information. Use of the Mobile App is subject to this Agreement, including the additional terms set forth in this Section 2.
2.1.2. App Distributors: To the extent Customer or its Authorized Users access the Services through a Mobile App distributed via the Apple App Store or Google Play Store, the following additional terms apply: (a) the license to use the Mobile App is limited to use on Apple- or Google-branded devices, as applicable, that the Authorized User owns or controls; (b) this Agreement is between Company and Customer only, and not with Apple Inc. or Google LLC, and Company, not Apple or Google, is solely responsible for the Mobile App and its content; (c) Apple and Google shall have no warranty obligation with respect to the Mobile App; (d) Company, not Apple or Google, is responsible for addressing any claims relating to the Mobile App, including product liability, legal or regulatory compliance, and consumer protection or privacy claims; (e) in the event of a third-party claim that the Mobile App infringes a third party's intellectual property rights, Company, not Apple or Google, is responsible for the investigation, defense, and discharge of any such claim; (f) Customer and its Authorized Users must comply with applicable third-party terms of agreement when using the Mobile App; and (g) Apple Inc. and Google LLC, and their respective subsidiaries, are third-party beneficiaries of this Section and shall have the right to enforce this Section against Customer.
2.1.3. Audio Recording Feature: The Mobile App may be configured to enable Customer or its Authorized Users to record audio of in-person conversations with one or more individuals and to have such recordings transcribed and summarized using AI Features (as defined in Section 2.2.1) (“Audio Recording Feature”). Use of the Audio Recording Feature is subject to Section 3.5 (Audio Recording Consent) and this Section 2. Audio captured through the Audio Recording Feature is recorded on the Authorized User’s device, copied to Company’s cloud environment, and then deleted from the Authorized User’s device. Once uploaded to Company’s cloud environment, the audio file is transcribed and retained, together with the resulting transcript and summary, as Customer Content in accordance with this Agreement, including Section 6.5 (Data Retention). The Audio Recording Feature processes recorded audio to distinguish between individual speakers in a conversation (e.g., labeling speakers as “Person A,” “Person B,” etc.) (“Speaker Identification”). Use of Speaker Identification is subject to Section 3.6 (Biometric Data Consent).
2.2. AI-Enabled Features
2.2.1 AI Features: Services may incorporate artificial intelligence, machine learning, or similar technologies, including third-party large language models ("AI Features").
2.2.2 AI Training: Company will not use Customer Content to train any generally available or third-party AI model without Customer's prior written consent; Company may use Aggregated Data (as defined in Section 4.12) to develop and improve AI Features. Company will ensure that any third-party AI provider engaged in connection with Services is contractually prohibited from using Customer Content to train AI models.
2.2.3 AI Compliance: Each Party shall comply with all laws and regulations applicable to AI Features in connection with its performance under this Agreement, including, to the extent applicable, the EU Artificial Intelligence Act.
2.3. Beta Features
2.3.1 From time to time, Company may make available features, functionality, or services that Company identifies as beta, preview, early access, pilot, or similar (collectively, "Beta Features"). Beta Features are optional, and Customer may choose whether to enable or use them. Company may, in its sole discretion, modify or discontinue any Beta Feature at any time and may never make any Beta Feature generally available.
2.3.2 BETA FEATURES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, ARE NOT SUPPORTED, AND ARE NOT SUBJECT TO ANY SERVICE LEVEL COMMITMENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.1.
2.3.3 Notwithstanding anything to the contrary in this Agreement, and in addition to the limitations set forth in Section 9, Company will have no liability arising out of or in connection with a Beta Feature, except for liability arising from (a) Company's gross negligence or willful misconduct, (b) bodily injury or death of a person, or (c) Company's breach of its confidentiality obligations under this Agreement or under Section 9.6 (Data Protection and Security Super Cap).
2.3.4 Except to the extent that a Beta Feature's normal use requires disclosure to a third party, the existence, features, and functionality of any Beta Feature not yet publicly released by Company constitute Company's Confidential Information under Section 4. Use of Beta Features remains subject to Section 3 (Restrictions and Responsibilities).
2.4. Third Party Product Integration
2.4.1 Third-Party Products: Services enable integration with certain third-party products and services (“Third-Party Product Integrations”). Customer may import and export Customer Content between the Services and certain Third-Party Product Integrations.
2.4.2 Third-Party Integrations: To enable the Services to communicate with such Third-Party Products, Customer may be required to provide credentials so the Services can access and receive relevant information from such Third-Party Products. By enabling use of the Services with any Third-Party Products, Customer authorizes Company to access Customer's accounts with such Third-Party Products and to share Customer Content with them for the purposes described in this Agreement.
2.4.3 Third-Party Terms: Customer is solely responsible for complying with any applicable terms and conditions of the Third-Party Products and for maintaining appropriate accounts in good standing with the providers of the Third-Party Products. Customer acknowledges and agrees that Company has no responsibility or liability for any Third-Party Products, including, without limitation, any beta releases or pre-release features of a Third-Party Product, or for how a Third-Party Product uses or processes Customer Content after it is exported to such Third-Party Products. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Product.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Acceptable Use Restrictions: Customer will not, directly or indirectly:
3.1.1. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or to any software, documentation, or data related to the Services (“Software”);
3.1.2. Modify, translate, or create derivative works based on the Services or any Software (except as expressly permitted by Company or authorized within the Services);
3.1.3 Use the Services or any Software for timesharing or service-bureau purposes, or otherwise for the benefit of a third party; or
3.1.4 Remove any proprietary notices or labels.
3.2. Software License: With respect to any Software distributed or provided to Customer for use on Customer’s premises or devices, Company hereby grants Customer, its affiliates, and Authorized Users (collectively, “Representatives”) a non-exclusive, non-transferable, non-sublicensable license to use such Software only during the Term and solely in connection with the Services, provided that Customer remains responsible for Representatives’ compliance with the Agreement.
3.3. Applicable Laws: Customer will use the Services and any Software only in compliance with all applicable laws and regulations, including to the extent applicable, data protection and privacy laws such as the EU/UK General Data Protection Regulation, California Consumer Privacy Act (as amended by the California Privacy Rights Act), and laws governing electronic communications and marketing, including the U.S. Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act.
3.4. Export Control and Sanctions Compliance: Each Party represents and warrants that it is not identified on any list of prohibited or restricted parties, including the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons and the U.S. Commerce Department's Denied Persons List or Entity List, and is not located in, organized under the laws of, or ordinarily resident in any country or region subject to comprehensive U.S. trade sanctions. Customer will not access or use the Services in violation of any U.S. export control or economic sanctions laws and will not permit any Authorized User to access or use the Services from a prohibited or restricted location or in a manner otherwise prohibited by such laws. Each Party will comply with all applicable export control and sanctions laws and regulations in connection with this Agreement.
3.5. Audio Recording Consent: To the extent the Services enable Customer or its Authorized Users to record audio of in-person conversations with one or more individuals (the “Audio Recording Feature”), Customer will not, and will ensure its Authorized Users do not, use the Audio Recording Feature to record any conversation unless every participant in that conversation has given prior consent in accordance with applicable law. Customer acknowledges that (a) certain jurisdictions require the consent of all parties to a conversation before it may be recorded, including under U.S. federal and state wiretapping and eavesdropping laws, and (b) Customer is solely responsible for identifying and complying with the recording consent laws applicable to each conversation Customer or its Authorized Users record using the Services.
3.6. Biometric Data Consent: Speaker Identification (as defined in Section 2.1.3) may constitute the collection of a biometric identifier or biometric information under certain federal, state, or other applicable biometric privacy laws, including, without limitation, the Illinois Biometric Information Privacy Act. Before using the Audio Recording Feature, Customer will obtain consent sufficient to satisfy the requirements of any applicable biometric privacy law. Customer is solely responsible for determining whether Speaker Identification constitutes the collection of a biometric identifier or biometric information under applicable law and for complying with any applicable notice, consent, retention, and destruction requirements.
3.7. Customer hereby agrees to indemnify, defend, and hold harmless Company and its affiliates, officers, directors, employees, and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any third-party claim or action that arises from: (a) An alleged violation of the foregoing paragraphs in this Section 3; (b) Customer Content, including any claim that Customer Content or Company’s use thereof as authorized by Customer infringes or violates a third party's intellectual property rights or privacy rights; or (c) Customer’s unlawful use of the Services or violation of applicable laws in connection with Customer Content. Customer shall have no indemnification obligations with regard to any claim or action to the extent it arises from (i) the negligence, failure to act or misconduct of Company, (ii) Company’s failure to comply with applicable laws, rules or regulations, or (iii) Company’s breach of this Agreement. Notwithstanding the foregoing clause (ii), Customer shall not be relieved of its indemnification obligations to the extent the claim or action arises from Customer’s breach of Section 3.5 (Audio Recording Consent) or Section 3.6 (Biometric Data Consent), regardless of whether Company is also alleged to have independently failed to comply with applicable law in connection with the same underlying facts.
3.8. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services that Company believes may be, or is alleged to be, in violation of this Agreement.
3.9. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, modems, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4. CONFIDENTIAL AND PROPRIETARY RIGHTS
4.1. Proprietary Information Definitions: Each Party (“Receiving Party”) understands that the other Party (“Disclosing Party”) has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business that is either marked as confidential or that a reasonable person would consider to be confidential given the nature of the information or the circumstances of disclosure (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Services.
4.2. Customer Content and Sensitive Personal Information Definitions: Customer’s Proprietary Information includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Content”). Customer will not provide Company with the following third-party data (collectively, “Sensitive Personal Information”): health data (for example, HIPAA data), bank, credit card, or financial credentials, authentication credentials, Social Security numbers, or street addresses that are not used as a business address.
4.3. Scanned Contact Content Definition: Customer acknowledges that the Services enable Customer's Authorized Users to capture personal information of third parties (e.g., event attendees, business card holders, badge holders) via the Mobile App's scanning functionality ("Scanned Contact Data"). As between the Parties, Scanned Contact Data constitutes Customer Content. Customer represents and warrants that it has, and will maintain, all necessary rights, consents, and lawful basis under applicable data protection laws to collect, process, and permit Company to process Scanned Contact Data for the purposes contemplated by this Agreement, including providing any required notice to individuals whose data is captured. Customer is solely responsible for responding to and fulfilling any data subject requests (including access, deletion, or opt-out requests) received from individuals whose data is included in Scanned Contact Data.
4.4. Sensitive Personal Information: Customer shall not use the Services to collect, store, process, or transmit any Sensitive Personal Information (as defined in Section 4.2). Customer acknowledges that Company is not a payment card processor and that the Services are not PCI DSS compliant. Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Customer acknowledges that Company is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Services.
4.5. The Receiving Party agrees:
4.5.1. To take reasonable precautions to protect such Proprietary Information, and
4.5.2. Not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
4.6. Exceptions: The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:
4.6.1. Is or becomes generally available to the public without a breach of this Agreement;
4.6.2. Was in its possession or known by it prior to receipt from the Disclosing Party;
4.6.3. Was rightfully disclosed to it without restriction by a third party;
4.6.4. Was independently developed without use of any Proprietary Information of the Disclosing Party; or
4.6.5. Is required to be disclosed by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. In any event, the Receiving Party will disclose no more than that portion of the Proprietary Information that is required.
4.7. Company Ownership: Company shall own and retain all right, title, and interest in and to:
4.7.1. The Services and Software, including all improvements, enhancements, or modifications thereto;
4.7.2. Any software, applications, inventions, or other technology developed in connection with Services, implementation, or support; and
4.7.3. All intellectual property rights related to any of the foregoing.
4.8. Customer Ownership: Customer shall own and retain all right, title, and interest in and to Customer Content.
4.9. Company shall not sell, lease, rent, share, or otherwise disclose Customer Content, except as expressly permitted under Section 4.10.
4.10. Company may share Customer Content only under the following circumstances:
4.10.1. With select service providers who perform work on Company’s behalf to provide the Services;
4.10.2. To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Company will endeavor to notify Customer if Company has received a lawful request for Customer Content);
4.10.3. To protect the rights and property of Company, its agents, other Company customers, and others, including, but not limited to, enforcing Company’s agreements, policies, and this Agreement;
4.10.4. In an emergency, including to protect Company’s information security or the personal safety of any person;
4.10.5. In connection with a sale or transfer of all or a part of Company’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or
4.10.6. As directed by Customer, including through its use of the Services.
4.11. License: During the Term, Customer grants Company a non-transferable, non-sublicensable, non-exclusive worldwide license to store, use, and access Customer Content solely for the limited purposes of:
4.11.1. Performing Company’s obligations under this Agreement and any applicable Order Form;
4.11.2. Responding to Customer’s service issues and requests for support;
4.11.3. Complying with Customer’s instructions; and
4.11.4. Maintaining and improving the Services.
4.12. Aggregated Data: Company may collect and use anonymized and aggregated data, telemetry data, and metadata arising from Customer's use of the Services ("Aggregated Data") to operate, maintain, and improve the Services, provided that Aggregated Data: (1) does not, and cannot reasonably be used to identify Customer or any individual; and (2) shall not include the substantive content of Customer Content, including, without limitation, notes, tags, custom fields, or other data reflecting Customer's proprietary intelligence associated with contact records. Company shall not attempt to re-identify any individual from Aggregated Data. Company retains all right, title, and interest in and to any Aggregated Data. Company shall not sell, lease, rent, or otherwise share for consideration Aggregated Data.
4.13. Customer grants Company the right to store, process, and retrieve personally identifiable information, including, without limitation, name, phone number, or email address, solely as reasonably necessary:
4.13.1. To provide the Services to Customer;
4.13.2. To prevent or address service, security, support, or technical issues;
4.13.3. As required by law; and
4.13.4. As expressly permitted in writing by Customer.
4.14. Customer Reference: Customer grants Company a non-exclusive, royalty-free, worldwide, limited license to use and display Customer’s name and logo on Company’s public website and marketing materials to identify Customer as a user of the Services. Any other use of Customer’s name and logo, such as in a press release or case study, will require Customer’s prior written consent. Company will comply with any written trademark usage guidelines provided by Customer and shall immediately cease using Customer’s name and logo upon the expiration or termination of this Agreement, or upon Customer’s written request.
4.15. Feedback: Company encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Services (“Feedback”). To the extent Customer provides Feedback, Customer grants to Company a royalty-free, fully paid, sublicensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such Feedback into the Services) without restriction. Customer shall ensure that: (a) Feedback does not identify Customer, its Affiliates, or Authorized Users, or include any Customer Content; and (b) Customer has obtained the requisite authorization from any Authorized User or other third party to grant the license described herein. For the avoidance of doubt, Feedback does not constitute Customer Confidential Information.
5. Payments
5.1. Payment Terms: Customer will pay Company the then-applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the then-current renewal term; however, Company must provide at least thirty (30) days written notice of any change, and may not change the fee rate structure during any period in which Customer has prepaid for that period.
5.2. Payment Disputes: If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment o
5.3. Late Payments: Company shall bill Customer via invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after Customer’s receipt of a reasonably undisputed invoice. Unpaid amounts are subject to a finance charge of 1.50% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.4. Taxes: Customer shall be responsible for all taxes associated with the Services, except U.S. taxes based on Company’s net income. Company shall include any applicable sales tax on any invoices.
6. TERM AND TERMINATION
6.1. Renewal: Subject to earlier termination as provided below, this Agreement is for the Initial Service Term specified in the Order Form and shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either Party requests termination at least thirty (30) days before the end of the then-current term.
6.2. Breach: In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) days’ notice if the other Party materially breaches any term or condition of this Agreement and does not cure the breach within that notice period.
6.3. Termination for Cause: If Customer terminates this Agreement and any applicable Order Form due to a material breach by Company, then Company shall promptly refund any prepaid fees for Services to be provided after the effective termination date.
6.4. Termination without Cause: Customer may terminate this Agreement for any reason without cause upon thirty (30) days’ notice to Company; however, such termination will not entitle Customer to any refund of fees prepaid by Customer to Company.
6.5. Data Retention: Upon expiration or termination of this Agreement, Company shall, upon Customer's written request made within thirty (30) days of the termination date, provide Customer with a complete export of all Customer Content in Company’s possession or control in a commonly used, machine-readable format. Following such thirty (30) day period, Company shall delete all Customer Content in its possession or control, except to the extent retention is required by applicable law, in which case Section 4’s confidentiality obligations shall continue to apply.
6.6. Suspension: In addition to its termination rights under this Section 6, Company may suspend Customer's or any Authorized User's access to the Services, in whole or in part, without liability, if Company reasonably determines that: (a) such suspension is necessary to prevent imminent harm to the Services, Company's systems, or the data of other customers; or (b) Customer's use of the Services violates Section 3 or poses a security risk. Company will use commercially reasonable efforts to provide advance notice of any suspension where practicable and will promptly restore access once the underlying issue is resolved.
6.7. Survival: All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
7.1. Company shall use reasonable efforts, consistent with prevailing industry standards, to maintain the Services in a manner that minimizes errors and interruptions, and shall perform the Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, whether by Company or by third-party providers, or due to other causes beyond Company’s reasonable control. However, Company shall use reasonable efforts to provide advance written or e-mail notice of any scheduled service disruption. Company does not warrant that the Services will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from use of the Services.
7.2. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. INDEMNIFICATION
8.1. IP Indemnification: Subject to the conditions in Section 8.5, Company shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, and agents from liability to third parties resulting from infringement by the Services of any valid patent or any copyright or misappropriation of any trade secret.
8.2. The foregoing obligations do not apply with respect to portions or components of the Service:
8.2.1. Not supplied by Company, where the alleged infringement would not have occurred but for such portion or component;
8.2.2. Made in whole or in part in accordance with Customer specifications;
8.2.3. That are modified by or on behalf of any person other than Company or Company Personnel after Company's delivery;
8.2.4. Combined with other products, processes, or materials where the alleged infringement relates to such combination;
8.2.5. Where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or
8.2.6. Where Customer’s use of the Services is not in strict accordance with this Agreement.
8.3. Infringement Resolution: If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be infringing, or are believed by Company to be infringing, Company may, at its option and expense:
8.3.1. Replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality;
8.3.2. Obtain a license for Customer to continue using the Services during the Term; or
8.3.3. If neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
8.4. General Indemnification: Subject to the conditions in Section 8.5, Company shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, and agents from liability to third-party claims resulting from:
8.4.1. Company’s breach of the Data Protection Addendum, which is incorporated into this Agreement by reference,
8.4.2. Company’s breach of its confidentiality obligations under Section 4 of this Agreement;
8.4.3. Bodily injury or death of a person, or damage to tangible personal property; or
8.4.4. Company's gross negligence or willful misconduct in connection with the provision of the Services.
8.5. Indemnification Conditions: Each Party's indemnification obligations under this Agreement are conditioned on the indemnified Party:
8.5.1. Promptly notifying the indemnifying Party in writing of the claim;
8.5.2. Granting the indemnifying Party sole control over the defense and settlement of the claim, provided that no settlement may be entered into that imposes any obligation or liability on the indemnified Party without the indemnified Party’s prior written consent; and
8.5.3. Providing the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party's expense.
9. LIMITATION OF LIABILITY
9.1. Scope: The limitations and exclusions in this Section 9 apply to all claims arising out of or related to this Agreement, whether based in contract, tort (including negligence), strict liability, or any other legal theory, and apply to each Party’s affiliates, officers, employees, agents, contractors, and suppliers.
9.2. Exclusions of Consequential Damages: Except as expressly set forth in this Section 9, neither Party shall be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for any loss of business, revenue, profits, data (including loss, inaccuracy, or corruption of data), interruption of use, or cost of procurement of substitute goods or services, arising out of or related to this Agreement, regardless of the theory of liability and whether or not such Party has been advised of the possibility of such damages.
9.3. General Liability Limit: Except as expressly set forth in this Section 9, each Party’s aggregate liability arising out of or related to this Agreement shall not exceed two (2) times the total fees paid by Customer to Company for the Services provided during the twelve (12) months immediately preceding the event giving rise to the claim.
9.4. Indemnification Liability: Subject to Sections 9.5 and 9.6, each Party’s aggregate liability arising from its indemnification obligations under this Agreement shall be limited to the greater of (i) ten times (10x) the total amount paid by Customer to Company under this Agreement during the twelve (12) months immediately preceding the event giving rise to the claim, or (ii) $100,000 USD.
9.5. Limitation Carve-Outs: The limitations and exclusions in this Section 9 shall not apply to:
9.5.1. Either Party’s gross negligence or willful misconduct;
9.5.2. Bodily injury or death of a person, or damage to tangible personal property; or
9.5.3. Customer’s breach of Section 3.5 (Audio Recording Consent) or Section 3.6 (Biometric Data Consent).
9.6. Data Protection and Security Super Cap: For claims arising from a data breach or violation of applicable data protection laws, Company's liability shall be limited to the per-claim and aggregate limits of Company's cyber insurance coverage. In accordance with Section 10, Company shall maintain cyber liability insurance with coverage of at least $5,000,000 per occurrence and in the aggregate. This Section 9.6, and not any other provision of this Agreement, governs any claim against Company arising from unauthorized access to, use of, or disclosure of Customer Content resulting from a security incident or data breach, however such claim is characterized or pled, including as a breach of Company's confidentiality obligations under Section 4.
9.7. Basis of Bargain: Each Party acknowledges that the fees charged reflect the allocation of risk set forth in this Section 9 and the insurance requirements set forth in Section 10, and that the Parties would not have entered into this Agreement without these limitations of liability and insurance commitments.
10. INSURANCE
10.1. During the Term of this Agreement and any applicable Order Form, and for one (1) year thereafter with respect to any claims-made policies, Company shall, at its own expense, maintain the insurance coverages set forth below. All insurance shall be issued by insurers rated A- or better by A.M. Best. Company shall be responsible for all deductibles and self-insured retentions, which shall be commercially reasonable considering Company’s business and risk profile. The insurance maintained by Company shall be primary and non-contributory to any insurance maintained by Customer.
10.1.1. Commercial General Liability Insurance, written on an occurrence basis, including coverage for bodily injury, property damage, personal and advertising injury, and products/completed operations, with limits of at least: $1,000,000 per occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations aggregate
10.1.2. Umbrella / Excess Liability Insurance, written on an occurrence basis, providing coverage in excess of the Commercial General Liability policy, with limits of at least $10,000,000 per occurrence and in the aggregate.
10.1.3. Management Liability Insurance, including Directors & Officers Liability, Employment Practices Liability, and Fiduciary Liability, with limits of at least $1,000,000 per claim, subject to an aggregate limit of $3,000,000.
10.1.4. Technology Errors & Omissions and Cyber Liability Insurance, covering liability arising from technology services, data breaches, network security failures, privacy violations, and errors or omissions, with limits of at least $5,000,000 per claim and in the aggregate.
10.2. Evidence of Insurance: Upon written request, Company shall provide Customer with a certificate of insurance evidencing the coverage required under this Section.
11. MISCELLANEOUS
11.1. Notices: 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 e-mail; the day after it is sent if sent for next-day delivery by a recognized overnight delivery service; and upon receipt if sent by certified or registered mail, return receipt requested.
11.2. Relationship: No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
11.3. Assignment: Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, that either Party may assign this Agreement in its entirety (including all Order Forms) without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
11.4. Jurisdiction: This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict-of-law provisions. Each Party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware for the resolution of any dispute arising out of or relating to this Agreement.
11.5. Legal Costs: In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
11.6. Disputes: Each Party knowingly, voluntarily, intentionally, and irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any dispute, claim, action, or proceeding of any kind, at law or at equity, arising under or relating to this Agreement, any Order Form, or the transactions contemplated hereby.
11.7. Force Majeure: Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent caused by circumstances beyond such Party's reasonable control, including acts of God, natural disasters, pandemics, wars, terrorism, governmental actions, or failures of third-party internet infrastructure ("Force Majeure Event").
11.8. Enforceability: 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.
11.9. Completeness: 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, and that all waivers and modifications must be in writing and signed by both Parties. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right or preclude any further exercise thereof or the exercise of any other right, remedy, or power. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
Most recent update: September 4, 2026