Usage Agreement Terms & Conditions
1. Defined Terms. As used in this Agreement, the following words shall have the following meanings:
(a) “Administrator” means one or more individuals who are employees of the Customer, having responsibility for administration of Services.
(b) “Agreement” means this Usage Agreement including all Exhibits, Amendments, and Addendums.
(c) “Commencement Date” means the date the Agreement is executed.
(d) “Services” means the Corti AI Based Cloud Service.
(e) “Services Level Agreement” means the services as set forth in Exhibit A, attached hereto and incorporated herein by reference.
(f) “User Documentation” means all instructions, specifications, operating manuals, user manuals, installation instructions, trouble-shooting guides, and other written materials relating to the Services published from time to time by Corti and made available to the Customer.
2. Usage. Subject to Customer’s payment of the Usage Fee and its compliance with this Agreement, including and without limitation the Use Restrictions, Corti grants to Customer for the Usage Period, a personal, nonexclusive, non-transferable, non-assignable right to access and use the Services. No other right to use or license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted to the Customer.
3. Use Restrictions. The right grant in Section 2 is subject to the following conditions and restrictions (“Use Restrictions”):
(a) Use of the Services will be solely by the Administrator or Users.
(b) Services shall only be installed in the Corti cloud (Microsoft Azure or Amazon AWS) or the Customer cloud.
(c) Customer will not modify, enhance, revise, alter, reverse engineer, de-compile, or disassemble the Services.
(d) Customer shall not distribute, sublicense, rent, loan, lease, export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the unmodified Services under this Agreement.
4. Intellectual Property Limitations. The Services are licensed, not sold to the Customer, for use only in accordance with this Agreement. Corti reserves all rights not expressly granted to the Customer. The Services are protected by United States copyright laws and international copyright treaties, as well as by other intellectual property laws and treaties. Except as expressly permitted herein, Customer may not make a copy of the Services or any associated User Documentation. Additionally, Customer may reproduce all User Documentation for use solely by Administrators and Users provided that; Customer reproduces all copyright, confidentiality and other proprietary notices that are on the original copy of the User Documentation.
5. Fees. During the Usage Period and as consideration for the use of the Services, Customer shall pay the Usage Fees:(a) All Fees are exclusive of any applicable sales, use, excise or similar taxes.
6. Insurance. Corti shall carry General Liability Insurance as well as data breach insurance in the minimum amounts of $1,000,000 per occurrence and $2,000,000 in the aggregate for each policy.
7. Warranty Disclaimer. CORTI MAKES NO WARRANTIES WITH RESPECT TO THE LICENSED SERVICES AND SPECIFICALLY DISCLAIMS, ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED SERVICES OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, COURSE OF DEALINGS OR PERFORMANCE, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CORTI KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, CORTI EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE LICENSED SERVICES OR ANY PART THEREOF.
8. Limitation of Remedy and Damages. CORTI SHALL NOT BE LIABLE TO CUSTOMER OR ANY USER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR LOSS OF REVENUE, ARISING FROM OR RELATED TO THE OPERATION OR USE OR MISUSE OF THE LICENSED SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, ERRORS OR DELAYS IN TRANSMISSIONS, INTERNET ISSUES, ACCESS TO CORTI’S CLOUD INFRASTRUCTURE, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER OR BY ANY THIRD PERSON, EVEN IF CORTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD CORTI HARMLESS FOR ANY AND ALL SUCH CLAIMS AND ANY MISUSE OF THE LICENSED SERVICES.IN NO EVENT SHALL CORTI’S AGGREGATE LIABILITY TO CUSTOMER (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH CUSTOMER), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF APPLICABLE INSURANCE SERVICE PROVIDER HOLDS TO COVER ANY LOSSES OR CLAIMS ARISING FROM THIS AGREEMENT.
9. Confidentiality. Customer acknowledges and agrees that any and all information emanating from Corti’s business in any form is “Confidential Information,” and Customer agrees that it will not, during or after the term of this Agreement, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than an employee, agent, or representative of the other party who must have such information for the performance of its obligation hereunder), unless such duplication, use, or disclosure is specifically authorized by the other party in writing. Customer shall:
(a) Not disclose any Confidential Information to any third person without the express written consent of the disclosing party;
(b) not use, directly, indirectly, or in concert with any other person, any Confidential Information for any purpose other than the performance of their obligations under this Agreement;
(c) use reasonable diligence, and in no event less than that degree of care that such party uses in respect to its own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of such information. Without limiting the generality of the foregoing, to the extent that this Agreement permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions.
For the purposes of this Section, the term “Confidential Information” shall not include: information that is in the public domain; information known to the recipient party as of the date of this Agreement as indicated by the recipient’s written records, unless the recipient party agreed to keep such information in confidence at the time of its receipt; and information properly obtained hereafter from a source who is not under an obligation of confidentiality with respect to such information; is independently developed by the receiving party through persons who have not had, either directly or indirectly, access or knowledge of such Confidential Information which can be verified by independent evidence; or is obligated to be produced under a court order of competent jurisdiction or a valid administrative or congressional subpoena. Customer acknowledges that a breach or threatened breach of its obligations hereunder would cause immediate and irreparable harm to Corti for which monetary damages would be an inadequate remedy, and that Corti shall be entitled to injunctive relief without the necessity of posting bond or other security.
10. Notices. All notices required to be given hereunder shall be in writing and shall be deemed to have been given upon deposit in first class mail, sent through a nationally recognized courier service, or transmitted by confirmed telefacsimile.
11. Term and Termination. This term of this Agreement will begin on the Commencement Date and continue for the Usage Period, unless terminated in accordance with the following:
(a) By Customer by providing Corti with at least ninety (90) calendar days prior written notice following the Usage Period;
(b) immediately by Corti if Customer fails to make any payment when due;
(c) by either party if the other party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or
(d) by either party, immediately upon written notice to the other party, if the other party (i) files, or has filed against it, a petition under any law relating to insolvency or the protection of creditors, or (ii) makes an assignment of the benefit of creditors, or (iii) has a receiver or similar official appointed for all or substantially all of its assets.
12. Dispute Resolution
(a) Any controversy or claim, whether based on contract, tort, strict liability, fraud, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement (the “Dispute”) shall be resolved solely in accordance with the terms of this Section. Each party reserves the right to seek an injunction or other equitable relief in court to prevent or stop a breach of this Agreement or a violation of any rights that such party has under statutory law.
(b) If the Dispute cannot be settled by good faith negotiation between the parties, Corti and Customer will submit the Dispute to non-binding mediation. If complete agreement cannot be reached within thirty (30) days of submission to mediation, any remaining issues will be resolved by binding arbitration in accordance with paragraphs (c) and (d) below. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, not state law, will govern the arbitrability of all Disputes.
(c) A single arbitrator who, unless otherwise agreed, is an attorney knowledgeable in the computer software field or in commercial matters will conduct the arbitration. The arbitrator’s decision and award will be final and binding and may be entered in any court with jurisdiction. The arbitrator will not have authority to limit, expand or otherwise modify the terms of this Agreement. The place of the arbitration shall be Miami, Florida. The arbitrator will not be empowered to determine issues of arbitrability nor to award exemplary or punitive damages. On motion, the arbitrator may determine to offer limited discovery, but in determining whether to permit discovery shall balance the benefit of the requested discovery against the burden on the party against whom discovery is sought.
(d) The mediation and, if necessary, the arbitration will be conducted under the then current rules of the alternate dispute resolution (“ADR”) firm selected by the parties, or if the parties are unable to agree on an ADR firm, the parties will conduct the mediation and, if necessary, the arbitration under the then current rules and supervision of the American Arbitration Association. Each party will each bear its own attorneys’ fees associated with the mediation and, if necessary, the arbitration. The parties will pay all other costs and expenses of the mediation/arbitration as the rules of the selected ADR firm provide. The parties and their representatives shall hold the existence, content and result of the mediation and arbitration in confidence.
13. Third Party Data
(a) Third-Party data stored via the Corti Cloud is the property of the Customer.
(b) Corti shall protect any Third-Party Data, including personal data and any confidential data, in accordance with Corti’s then current Privacy Policy provisions, incorporated by reference at www.corti.ai. Please reference the Corti website for the current version.
(c) If Customer provides any feedback and/or suggestions (“Feedback”) to Corti, Corti is entitled to use the Feedback without restrictions, including but not limited to use and incorporate into the Corti Service to develop new features or enhance the performance, functionalities, or security of the Corti Service. Feedback shall mean any suggestions, enhancement requests, recommendations, report, feedback, proposals, anonymized statistical data or other information concerning the Corti Service. Notwithstanding anything to the contrary herein contained, in no event shall Feedback be deemed Customer intellectual property.
14. General Terms
(a) Customer agrees to remain as a reference and field no more than three calls/quarter; Corti will facilitate reference calls after confirming availability with Customer. Customer agrees to participate in marketing collateral and initiatives, including but not limited to white papers, testimonials, webinars, etc. that are to be mutually agreed upon by both Corti and Customer.
(b) Customer may not assign or transfer, by operation of law or otherwise (including merger or consolidation with any other entity) any of its rights under this Agreement to any third party without the prior written consent of Corti. Any assignment or transfer without Corti’s consent shall be null and void.
(c) Corti shall not be responsible for failure or delay in supplying or delivering any Services, or other performance hereunder which is caused by an event of Force Majeure. “Force Majeure” means any circumstance whatsoever which is not within the reasonable control of a party, including an act of God, war, insurrection, riot, strike or other labor dispute, shortage or delay in delivery of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
(d) This Agreement will be governed by the internal laws of the State of Florida without reference to conflicts of laws principles.
(e) If any provision of this Agreement is held invalid or unenforceable in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby, and the provision held wholly or partly unenforceable or invalid will be deemed amended, and the court or other adjudicative body is authorized to reform such provision(s) to the minimum extent necessary to make them valid and enforceable in conformity with the intent of the parties as manifested in this Agreement.
(f) The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement.
(g) This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns as permitted by this Agreement.
(h) This Agreement constitutes the complete and exclusive statement of the agreement between Customer and Corti, and supersedes any proposal or prior agreement, oral or written, and any other communications relating to the subject matter of the Services.
(i) This Agreement, including any exhibits, addenda, schedules and amendments, has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. Each party has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purposes of the parties and this Agreement. This Agreement shall be interpreted in the English language.
Exhibit A Service Level Agreement - Support and Maintenance (2021)
Definitions
In these terms and conditions, defined terms and expressions with capital letters shall have the meaning set out below:
Corti Representative.
Corti will appoint a representative who will be the customer’s main point of contact.
Customer Representatives.
The Customer will appoint a representative who will be Corti’s main point of contact in case of an error or inquiry.
Error
means any kind of material software error that leads to Corti failing to comply with the defined software specifications.
Priority 1 Error
means an error that makes the system inoperable or causes a complete failure of the software leading to a major disruption/impact.
Priority 2 Error
means an error that substantially degrades the performance of the software or materially restricts the end-user’s usage of the software.
Priority 3 Error
means an error causing only a minor impact on the User’s use of the software.
Ticket.
A ticket is a case opened with Corti’s customer support team regarding a Corti-related error that has occurred.
Error Correction
means a bug fix, patch, modification, or addition that brings the software back to material conformity, based on the software specifications.
Updated Version
means any new commercially deployable version of the software, which may include Error Corrections, upgrades, and new features that Corti wishes to perform.
Business Hours
means the hours of 09:00 to 17:00 EST on a Business Day.
User Obligation.
The Customer will assign at least three administrative employees (“Customer Representatives” or “Customer Administrators”) who will be capable of answering questions, explain changes, and handle simple and complex requests from the Customer’s own end-users/employees with respect to the software.
Basic Training.
Corti will provide training, documents, and materials to the Customer Representatives to enable the Customer Representatives to provide basic technical and functional support.
Error Procedures.
This document will outline Corti’s Error Procedures. Customer Representatives should always use Corti’s Error Procedure, as set out in Clause 3 and 4, when reporting an error, idea, or inquiry to Corti to ensure a continuous flow of information.
Customer Support Board.
Corti will as a part of the arrangement implement a customer support board where the end-users and customer representatives can communicate with Corti’s support team, find training and support material, and read updates from Corti’s support team to ensure fast and seamless communication.
Support Services.
Corti will as a part of this agreement deliver 3rd level support and maintenance in respect of Corti’s provided Software as set out in this SLA consisting of:
(a) Corti will respond to Customer Representatives with the utmost haste as defined in this agreement.(b) Corti will correct errors and fix bugs that the Customer is unable to resolve.
(c) Corti will perform periodic delivery of error corrections and software updates.
(d) Corti will support the Customer Representatives in the maintenance of Corti provided servers.
(e) Corti will upgrade the Software to the newest version of the software when able to.
(f) Corti will share best practices with the Customer and the end-users to secure optimal use and business outcomes.
(g) Corti will offer basic training materials, which will be kept updated and available.
1. Scope and purpose of these terms and conditions
1.1 Corti and the Customer shall together be referred to as the “Parties” and individually shall be referred to as a “Party”.
1.2 The SLA and any deliveries hereunder are governed by the Usage Agreement.
1.3 By installing or using the Services, the Customer accepts all of the terms and conditions set out in the Usage Agreement and in this SLA. If the Customer does not wish to be legally bound by the terms and conditions of these agreements, do not install or use the Services.
2. Assumptions
2.1 All 1st and 2nd line support is carried out by the Customer.
2.2 Corti will ensure a handover of information, so that the Customer can provide 1st and 2nd line support and have a full disaster recovery plan in place.
2.3 Furthermore, Corti’s obligation to provide Support Services is based on the assumption that:
(a) Customer Representatives have the necessary technical qualifications and completed the training provided to provide first and second level support;
(b) Customer Representatives provide any necessary information and connection lines/access specified by Corti in order to assess or correct identified errors or problems;
(c) Customer follows all reasonable directions given by Corti in respect of use of the Software and as set out in the Documentation for said Software (cf. the Usage Agreement); and
(d) Corti does not provide support in respect of software or hardware not provided by Corti.
2.4 Corti will take part in a maximum of two disaster recovery drills/exercises per year that will be quoted following the consultancy fee. These exercises need to be planned and scheduled at least 6 months in advance.
2.5 Notwithstanding in 3.1, Corti shall, if necessary, provide Support Services but any costs related hereto shall be borne solely by the Customer and Customer shall cover any additional costs of Corti as a result of such circumstances.
3. Support Procedures.
3.1 The Customer Representatives will refer any Corti-related error to the Corti Representative if the Customer Representatives, after rigorous testing, could not solve the problem that is obviously related to a malfunction in the provided software or hardware.
3.1.1 When reporting an error, the Customer Representative will create a ticket. The ticket has to clearly state the error in reasonable detail and the circumstances under which the error occurred or is occurring. The Customer Representative will initially classify the Error as Priority 1, 2 or 3.
3.1.2 Corti can later choose to re-classify the error type and notify the Customer Representative.
3.1.3 The Customer Representatives will assist Corti’s support team in gathering information, to enable them to identify problems with respect to the reported error.
3.1.4 Depending upon the priority level of the error type, Corti will commence verification of the error within due time as defined below in Appendix 1; and, upon verification, commence error correction.
3.1.5 Corti will work diligently to verify the error, and, once an error has been verified and until an error correction has been provided, keep the Customer Representative in-loop on the case development both through email and the customer support board in the end-user software. The frequency in the communication will as a minimum follow the guidelines defined in the table below Appendix 1.
3.1.6 Corti shall exercise commercially reasonable efforts to correct any error reported by the Customer Representative in accordance with the priority level assigned to such error by the Customer Representative.
4. Changes to Procedures
4.1 The Parties acknowledge that from time-to-time Corti may update their support processes addressed in this agreement by sending such updates to the Customer’s management team and the Customer Representatives with reasonable notice.
Appendix 1 - Overview of Incident Categories
In the table below, Corti’s support procedures for each error type are defined. The time requirements set out are within Business Hours.
Priority 1
Response Process
Until a fix has been provided and confirmed, or the ticket has been downgraded, Corti will treat this as the highest priority.
Communication
Telephony or e-mail in addition to a support ticket.
Response Time
Within 2 hours of the support ticket being created, Corti will have initiated error verification.
Error Verification
Within 12 hours of the support ticket being created Corti will have verified the error.
Error Correction Initiation
Straight after error verification.
The Frequency of Status Reports
Every 2 hours until the error is resolved from the point of verification.
Priority 2
Response Process
Corti will proceed with a fix as medium priority work, according to the schedule mutually agreed on by both Corti and Users Customer Representatives.
Communication
Support ticket and email to the Customer Representative.
Response Time
Within 4 hours of the support ticket being created, Corti will have initiated error verification.
Error Verification
Within 24 hours of the support ticket being created, Corti will have verified the error.
Error Correction Initiation
If there is no quick solution, the error verification will be initiated after an agreement is reached with the Customer Representative.
The Frequency of Status Reports
The status will be available on Corti’s Support platform and a bi-weekly update will be sent by Corti’s Customer Representative until the error is resolved.
Priority 3
Response Process
Corti will proceed with the fix as low priority work and include it in the next upgrade being released.
Communication
Support ticket.
Response Time
Within 12 hours of the support ticket being created, Corti will have initiated error verification.
Error Verification
Within 24 hours of the support ticket being created, Corti will have verified the error.
Error Correction Initiation
Corti will plan with the Customer Representative to include a fix in the next software update.
The Frequency of Status Reports
The status of the error will be available on Corti’s Support platform until the problem is resolved.
Customer Initial: ___________Corti Initial: ______________