Master Subscription Agreement
Application of this agreement
- This Agreement applies to your use of the Services (as that term is defined below).By signing (or submitting to us) an Order Form for the provision of the Services, clicking I agree (or similar) in the course of an online sign-up process, or accessing or using the Services:
- you agree to this Agreement; and
- where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.
- We are not bound by this Agreement until we have accepted it.Our acceptance occurs on the when we notify you by email that we accept your Order Form, or commence supplying the Services to you (whichever is the earlier).If, after we have become accepted this Agreement, you submit a subsequent Order Form to us, we are not bound by that Order Form or Statement of Work until we notify you by email that we accept that Order Form, or commence supplying the relevant Services to you (whichever is the earlier).
- This Agreement applies to the exclusion of any standard terms you may have for the purchase of goods or services and any terms included, or incorporated by reference, in any request for quote, purchase order or other correspondence between us.
- If you do not agree to this Agreement, you are not authorised to access and use the Services, and you must immediately stop doing so.
- We may change the terms in this Master Subscription Agreement at any time:
- as we consider (acting reasonably) is required as a result of any change in applicable laws;
- where the change has no material adverse effect on you; or
- as set out in clause 4.6b.
InterpretationIn this Agreement:
Authorised Partner means our authorised resellers, distributors, integration partners and similar.
Agreement means this Master Subscription Agreement, including the Schedules and the Order Forms.
Business Day has the meaning given in the Published Service Levels.
Business Hours has the meaning given in the Published Service Levels.
Chat Channel means a third party messaging or chat service through which a Chatter can interact with a Conversational AI Instanceusing the Platform Services.
Chatter means an individual who interacts with a Conversational AI Instanceprovided using the Platform Services.
Chatter Data means all:
- Chatter Personal Information; and
- all other data and information owned, held, used or created by a Chatter that is stored or processed using, or inputted into, the Platform Services.
Chatter Personal Information means all personal information about a Chatter.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Underlying Systems. Your Confidential Information includes the Content.
Content means all data, content, and information (including personal information) owned, held, used or created by you or your Permitted Users or on your or your Permitted Users’ behalf that is stored or processed using, or inputted into, the Platform Services, including the content of the Conversational Material, but excluding the Chatter Data.
Conversational AI Instance means a chatbot or other conversational artificial intelligence instance.
Conversational AI Services means Conversational AI Instances that utilise the Platform Services.
Conversational Material means the written language and conversational direction for a Use Case implemented into a Conversational AI Instanceas the framework for directing Chatter engagement through conversations with the Conversational AI Instance.
Extended Hours has the meaning given in the Published Service Levels.
Fees means the fees for Paid Services (including any feature of Paid Services that you subsequently subscribe to), as set out in the Order Form or as agreed otherwise in writing with us, and as may be updated from time to time in accordance with clause 10.7.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Free Services means the Platform Services provided to you under a free trial or other non-paying plan (which may include services or functionality made available to you to try at your option at no additional charge which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar), as set out in an Order Form or otherwise made available by us to you.
including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Minimum Terms means the minimum terms set out in the Schedule, as updated by us from time to time by notice to you.
Objectionableincludes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Order Form means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between you and us, including any documents attached to that document or order.
Out of Hours has the meaning given in the Published Service Levels.
Overage Charges means the applicable Fees for use of the Services in excess of the limits stated in the Order Form.
Paid Service means a Platform Service offered under a fees-based plan.
a party includes that party’s permitted assigns.
Permitted Users means your personnel and, if you are a company, your Related Companies and your Related Companies’ personnel who are authorised to access and use the Platform User Interface on your behalf in accordance with clause 8.1.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Platform Services means the products and services that are ordered by you under an Order Form or provided to you as Free Services and that are made available online by us, including associated offline or mobile components, but excluding Support Services.
Platform User Interface means the user interface areas of the Platform Services that are accessible by you and your Permitted Users using a User ID.
Product Documentation means the product description statement, architectural documentation and/or other product information relating to the Platform Services that we provide to you.
Published Service Levels means the service level documentation for the Platform Services set out in the Product Documentation.
Related Company has the meaning has the meaning given in section 2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included any body corporate of any jurisdiction).
Sales Tax means sales tax, value added tax, goods and services tax, or equivalent tax payable under any applicable law.
Services means the Platform Services and the Support Services.
Supplementary Terms means the supplementary terms that apply where you use certain Chat Channels in conjunction with the Platform Services, as set out in the Schedules.
Support Services means non-automated services that are provided by us and/or our Authorised Partners to support and maintain the Platform Services and to assist you in your use of the Platform Services.
Start Date means the date we accept this Agreement in accordance with clause 1.2.
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Platform Services, including any third party solutions, systems and networks.
Use Case means the Conversational AI Instance use cases set out in the Order Form or as otherwise agreed in writing with us.
User ID means a unique name and/or password allocated to you or a Permitted User to allow you or that Permitted User to access certain parts of the Platform Services.
we, us or our means Ambit AI Limited, a New Zealand company (company number 6262668).
Year means a 12-month period starting on the Start Date or the anniversary of that date.
you or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
- We will provide the Services:
- in accordance with this Agreement and applicable laws;
- exercising reasonable care, skill and diligence; and
- using suitably skilled, experienced and qualified personnel.
- Platform Services provided for development, testing and/or sandbox purposes:
- may not comply with the Product Description; and
- are provided on an as is basis; and
- if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make the relevant Chat Channel or Integration Add On available to you.If we cease the availability of a Chat Channel or Integration Add On:
- where we are charging you a fee for that Chat Channel or Integration Add On as a separate item from the Fees for the core Platform Services (Add On Fee):
- we will cease charging you any portion of the Add On Fee that represents a pass-through of third party costs incurred by us for the use of the third party feature, with effect from the date the third party feature provider ceases charging us that fee; and
- we will cease charging you any portion of the Add On Fee that is not a pass-through of third party costs, with effect from the date we cease the availability of the Integration Add On; and
- no other refund, discount or other compensation shall be payable by us; and
- if a third party feature provider changes the terms on which it provides that feature to us, we may change the terms in this Agreement as we consider necessary (acting reasonably) to reflect that change in accordance with clause 2.2.
Free servicesWhere you or your Permitted Users use Free Services:
- the Free Services are provided on an as is basis, and, despite any other provision in this Agreement, all liability, conditions, warranties and guarantees in relation to the Free Services are excluded by us to the maximum extent permitted by law;
- no Fees are payable for the right to access and use the Free Services;
- the right to access and use the Free Services will end at the end of the advertised trial or availability period (if applicable);
- either party may terminate your and your Permitted Users’ right to access and use the Free Services at any time by giving notice to the other party;
- nothing in this Agreement requires:
- you, on termination of the Free Services, to subscribe to Paid Services or any other service provided by us; or
- us, on termination of the Free Services, to provide you or your Permitted Users with access and use of the Services or any other service, unless you have subscribed to Paid Services; and
- except as set out in this clause 5, this Agreement applies to your and your Permitted Users’ access and use of the Free Services.
- If the Order Form specifies that we are providing Support Services to you, we will provide Support Services in accordance with:
- clauses 6.5 to 6.10; and
- the Published Service Levels.
- clauses 6.5 to 6.10 do not apply; and
- the terms of which the Support Services will be provided will be as agreed between you and the Authorised Partner.
- provide telephone and email support in the form of consultation, assistance and advice; and
- use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).Resolution may include providing a work around.
- there being no overdue Fees that have not been paid within 10 day of us giving you notice of the overdue amount and not otherwise in breach of any of this Agreement;
- first using reasonable efforts to resolve the issue using any documentation or other information made available by us (including through the Platform User Interface) to enable you and your Permitted Users to use the Platform Services;
- logging a request for support via email, telephone, or other method as supplied by us; and
- providing us with all information and access reasonably required to enable us to provide the requested Support Services.
- a breach of this Agreement by you or a Permitted User; or
- the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us.
Product enhancementsAt your request, we may from time to time agree to develop or provide new features or functionality, subject to:
- you and us agreeing (or you and us agreeing with an Authorised Partner) the terms and conditions that are to apply to the development and/or provision of such features or functionality.In some cases, a statement of work may need to be entered into to govern the development and/or provision of such features or functionality (any such statement of work between you and us will be governed by our Professional Services Agreement at https://ambit-ai.com/legal/); and
- you paying the applicable fees.
- You may authorise any member of your personnel and, if you are a company, any Related Company and any member of your Related Companies’ personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User.You must procure each Permitted User’s compliance with clauses 8.2 and 8.3 and any other reasonable condition notified by us to you.
- You and your Permitted Users must:
- use the Services in accordance with this Agreement solely for:
- in the case of Paid Services, the Use Cases;
- your and, if you are a company, your Related Companies’ own business purposes; and
- lawful purposes (including complying with any anti-spam laws and regulations); and
- keep your and their User IDs secure including not disclosing it or permitting any third party to use it, and notify us immediately on becoming aware that any person has unauthorised access or use of your or their User ID;
- not impersonate another person or misrepresent authorisation to act on behalf of others or us;
- correctly identify the sender of all electronic transmissions;
- not attempt to undermine the security or integrity of the Platform Services or the Underlying Systems;
- not use, or misuse, the Platform Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform Services;
- not attempt to view, access or copy any material or data other than:
- that which you and they are authorised to access; and
- to the extent necessary for you and them to use the Services in accordance with this Agreement;
- be consistent with this Agreement; and
- be no less protective of us than the Minimum Terms, provided that any new or amended Minimum Term is to apply only after the receipt of our notice to you of the updated Minimum Terms.
- sets out how you collect, use, hold and process personal information obtained by you through the Chatter’s use of the Conversational AI Services; and
- is consistent with this Agreement (to the extent relevant to your use of the Conversational AI Services).
- all equipment, facilities and services (including internet access) required to enable you to access and use the Platform Services; and
- all licenses, authorisations and consents required for you, your Permitted Users and your Chatters to use the Platform Services, including to use, store and input Content and Chatter Data into, and process and distribute Content and Chatter Data through, the Platform Services.
Content and chatter data
- You acknowledge that we (including our personnel) may collect, use, hold and process:
- Content and Chatter Data to perform our obligations and exercise our rights under this Agreement during the term of this Agreement and for a decommissioning period of no more than 30 days following its expiry or termination;
- Content and Chatter Data to build and improve the natural language models and algorithms contained within the Platform Services through the use of machine learning processes, including that:
- through the use of machine learning techniques, conversational material from Content and Chatter Data may be incorporated into the natural language models and algorithms that are used by the Platform Services to understand and generate natural language;
- such models and algorithms may, both during the term of this Agreement and following its expiry or termination:
- be used within the Platform Services;
- be further improved through the use of machine learning processes; and
- produce conversational material the same as, or similar to, conversational material from Content and Chatter Data;
- Chatter Data:
- on an aggregate and anonymous basis, for our internal research, analytical and product development purposes, and to conduct statistical analysis and identify trends and insights, including publishing anonymised results and supplying anonymised results to third parties, both during the term of this Agreement and following its expiry or termination; and
- as expressly approved by the relevant Chatter.
- You acknowledge that Chatters may provide personal information to the Conversational AI Services where they have not been requested to do so and it would not be reasonably expected that they would do so.We will not be liable to you, or held to be in breach of this Agreement, for any failure to anonymise or delete Chatter Data that is Chatter Personal Information if we were not aware, and would not reasonably be expected to be aware, that the Chatter Data was Chatter Personal Information.
- We will not be required to delete Content or Chatter Personal Information contained in archived computer system backups made in accordance with our standard security and/or disaster recovery procedures.
- To the extent permitted by law the parties acknowledge and agree that:
- in collecting, holding and processing Chatter Personal Information through the Services in accordance with clause 9.1a, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law; and
- that, to the extent Chatter Personal Information is used by us under clause 9.1b or 9.1c, we will not be acting as your agent for the purposes of the Privacy Act 1993 or any other applicable privacy law.
- You must arrange all consents and approvals (including, in respect of any Chatter Personal Information, all necessary consents from the relevant individual) that are necessary for us to collect, use, hold and process the Content and Chatter Data as described in clauses 9.1a and 9.1ci.
- While we will take standard industry measures to back up all Content and Chatter Data stored using the Platform Services, you agree to keep a separate back-up copy of all Content and Chatter Data that is uploaded by you onto the Platform Services.
- You agree that we may store and access Content and Chatter Data provided to us for testing purposes (including any personal information included in that Content and Chatter Data) in non-production environments in secure servers in the United States, Europe, Australia and New ZealandYou agree that we may store and access Chatter Personal Information in secure servers in Europe, Australia and New Zealand only, unless otherwise agreed in writing.
- You agree that we may delete, edit or remove Content and Chatter Data and other personal information if we consider (acting reasonably) that we are required to do so to comply with applicable law.
- You must pay us the Fees:
- unless otherwise set out in the Order Form, in advance of the Services being enabled or provided or the subscription period to which the Fees relate (as applicable) (except for Overage Charges and additional Support Services provided under clause 6.5, which are payable on the terms stated in the Order Form); and
- electronically in cleared funds without any set-off or deduction.
- Subject to clauses 11.2 and 11.3, title to, and all Intellectual Property Rights in, the Services, and all Underlying Systems is and remains our property (and the property of our licensors).You must not dispute that ownership.
- Title to, and all Intellectual Property Rights in, the Content remains your property (or, where applicable, the property of your licensors).You grant us a worldwide, non-exclusive, fully paid up, non-transferable (except as set out in clause 18.12), irrevocable license to use, store, copy, modify, make available and communicate, and to allow our third party service providers that provide, host or maintain the Underlying Systems to use, store, copy, modify, make available and communicate, the the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement.
- Title to, and all Intellectual Property Rights in, the Chatter Data (as between the parties) remains the property of the Chatter.You must ensure that the Chatter grants us a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Chatter Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement.
- To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
- If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
- all Intellectual Property Rights in anything we create as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
- we may use or disclose the feedback for any purpose.
- We indemnify you from and against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the Platform Services in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).The indemnity is subject to you:
- promptly notifying us in writing of any IP Claim;
- making no admission of liability and not otherwise prejudicing or settling the IP Claim, without our prior written consent; and
- giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim.The costs incurred or recovered are for our account.
- a breach of this Agreement by you or a Permitted User;
- the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us;
- any Content or Chatter Data; or
- the combination or use of the Platform Services with any other device, service, software or system not provided by us if such infringement would not have arisen but for that combination or use.
- obtain for you the right to continue using the items that are the subject of the IP Claim;
- modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing; or
- if we cannot achieve the remedies in clauses 12.3a and 12.3b using commercially reasonable efforts, terminate this Agreement.
- any actual or alleged claim by a third party that any Content or Chatter Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Content or Chatter Data is Objectionable, incorrect or misleading;
- any warranty, representation or indemnity given by you to a Chatter or relating to the Platform Services which is inconsistent with the terms of this Agreement or the Minimum Terms; or
- any breach of the warranty in clause 8.4.
- Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 13.1a and 13.1b.
- for the purpose of performing a party’s obligations, or exercising a party’s rights, under this Agreement;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
- by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than clause 13.1.
- Each party warrants that it has full power and authority to enter into, and perform its obligations, under this Agreement.
- To the maximum extent permitted by law:
- our warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
- except as set out in this Agreement, we make no representation concerning the quality of the Services and do not promise that the Services (including information generated through your use of the Services) will:
- meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility you may have; or
- be secure, free of viruses or other harmful code, uninterrupted or error free.
- supplying the Services again; and/or
- subject to clause 15.1, paying the costs of having the Services supplied again.
- Each party’s maximum aggregate liability under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Services in the 3 month period prior to the date of the first event giving rise to liability.
- Neither party is liable to the other under or in connection with this Agreement or the Services for any:
- loss of profit, revenue, savings, business, use, data (including Content and Chatter Data), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
- if any undisputed Fees have not been paid.
- under the indemnity in clause 12.1;
- for breach of Intellectual Property Rights;
- under or in connection with this Agreement for:
- personal injury or death;
- fraud, wilful or unlawful misconduct; or
- breach of clause 13; or
- to pay the Fees;
- under the indemnities in clause 12.4; or
- for breach of Intellectual Property Rights;
- for those matters stated in clause 15.4c.
Term, termination and suspension
- Unless terminated earlier in accordance with this Agreement and unless otherwise set out in the Order Form, this Agreement:
- starts on the Start Date and continues for an initial term of 12 months; and
- at the end of the initial term or any subsequent term, continues for successive terms of 12 months unless a party gives 30 days’ notice that this Agreement will terminate on the expiry of the then current term.
- breaches any material provision of this Agreement and the breach is not:
- remedied within 30 days of the receipt of a notice from the first Party requiring it to remedy the breach; or
- capable of being remedied; or
- you must pay all Fees for the Services provided to you prior to that termination; and
- by you under clause 16.2, we will refund prepaid Fees to the extent those Fees relate to any period after termination.
- you or any of your personnel have:
- undermined, or attempted to undermine, the security or integrity of the Platform Services or any Underlying Systems;
- used, or attempted to use, the Platform Services:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Platform Services;
- Both parties must use their best efforts to resolve any dispute that may arise under, or in connection with, the Agreement through good faith negotiations.
- If the parties are unable to resolve a dispute by negotiation within a reasonable period of time, either party may require the dispute to be escalated for resolution by their chief executives or equivalent officers.
- If a dispute is unable to be resolved under clause 17.2 within 10 Business Days of escalation or such longer period as the parties agree, either party may refer the dispute to mediation by notice to the other party, in which case:
- The mediation will be subject to the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. (AMINZ).
- The mediation will be conducted in Auckland, New Zealand by an independent mediator and at a fee agreed to by each party.
- The cost of the mediator will be borne in equal proportions by the parties.
- If the parties cannot agree on the mediator and/or the mediator’s fee within 5 Business Days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by the President of AMINZ.
- Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure.
- Neither party will, during the term of this Agreement and for 6 months after its expiry or termination (Restraint Period), without the prior written consent of the other party, directly or indirectly solicit or offer employment or any contract for services to any of the other party’s personnel, or solicit or entice any member of the other party’s personnel to terminate their position, employment or relationship with the other party.This clause does not restrict a party from hiring any person who has responded to a genuine published advertisement of a position with that party that is not targeted at the particular individual and without any other solicitation.
- No person other than you and us has any right to a benefit under, or to enforce, this Agreement.
- For us to waive a right under this Agreement, that waiver must be in writing and signed by us.
- Subject to clause 9.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
- If we need to contact you, we may do so by email or by posting a notice within the Platform User Interface.You agree that this satisfies all legal requirements in relation to written communications.
- This Agreement, and any dispute relating to this Agreement or the Services, are governed by and must be interpreted in accordance with the laws of New Zealand.Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with this Agreement or the Services.
- Clauses which, by their nature, are intended to survive termination of this Agreement, including clauses 9.1, 11, 12, 13, 14, 15, 16.5 to 16.8 and 18.7, continue in force.
- If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement.The remainder of this Agreement will be binding on you and us.
- Except as expressly set out otherwise in this Agreement, any variation to this Agreement must be in writing and signed by both parties.
- This Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in this Agreement, and no such representation, warranty or agreement made prior to the Start Date has any effect.
- Neither party may assign, novate, subcontract or transfer any right or obligation under this Agreement other than to a Related Company without the other party’s prior written consent, that consent not be unreasonably withheld.You remain liable for your obligations under this Agreement despite any approved assignment, subcontracting or transfer.
- Subject to paragraph 2 of these Minimum Terms, we (and our licensors) own all Intellectual Property Rights in the Platform Services.
- The Chatter owns all Intellectual Property Rights in the Chatter Data.
- The Chatter must use the Platform Services for lawful personal or internal business purposes only and must not copy, reproduce, reverse-engineer, decompile, disassemble, resell, distribute or modify the Platform Services without our written consent except to the extent expressly permitted by law.
Supplementary Terms for Facebook Chat Channels
In this Schedule:
Chatter Facebook Data means any data (including a Chatter’s content or information, and whether personally identifiable or anonymous), that you access through use of the Facebook Chat Services, e.g. user data from a Chatter’s Facebook page.
Facebook means Facebook, Inc. and/or any of its Related Companies.
Facebook Chat Services means any services provided by Facebook that you use as a Chat Channel in conjunction with the Platform Services.
Facebook Online Terms means:
- Facebook’s Terms at www.facebook.com/terms.php;
- Facebook’s Commercial Terms at www.facebook.com/legal/commercial_terms; and
- Facebook’s Platform Policy at https://developers.facebook.com/policy.
Facebook Supplemental Terms means any supplemental terms that Facebook requires that you and/or we enter into in connection with your and/or our use of the Facebook Chat Services.Service Provider means any service provider, other than us and our service providers, that you use directly or indirectly in connection with the Chatter Facebook Data and/or the Facebook Chat Services.
- Unless stated otherwise in the Order, this Schedule applies when you use Facebook Chat Services in conjunction with the Platform Services.
- Any access to or use of Chatter Facebook Datais subject to, and you agree to comply with, the Facebook Online Terms and this Schedule, including the privacy and data obligations (e.g., use and transfer restrictions and deletion obligations) set out in the Facebook Online Terms and this Schedule.
- This Schedule does not limit your obligations or Facebook’s rights under the Facebook Online Terms, and it includes privacy and data obligations on you that are additional to those in the Facebook Online Terms.
Chatter Facebook data
- You authorise us to access and use, and we agree to only access and use, Chatter Facebook Data that we access in the course of providing the Platform Services to you in accordance with:
- your instructions and this Agreement (including this Schedule); and
- the Facebook Online Terms and any Facebook Supplemental Terms that apply to us.
- You must always have in effect and maintain administrative, physical and technical safeguards that:
- meet or exceed industry standards given the sensitivity of the Chatter Facebook Data;
- are compliant with applicable law (including data security and privacy laws, rules and regulations); and
- are designed to prevent any unauthorised access, use (including any use in violation of the Facebook Online Terms or this Schedule), processing, storage, destruction, loss, alteration or disclosure of Chatter Facebook Data (Unauthorised Data Use).
- Following the discovery of any suspected or actual Unauthorised Data Use, you must:
- immediately notify us and Facebook of the incident, and the notice must describe:
- the nature of the Unauthorised Data Use;
- when the Unauthorised Data Use occurred;
- the effect on Facebook and/or Facebook users; and
- your corrective action to respond to the Unauthorised Data Use; and
- promptly take appropriate actions in compliance with applicable laws to address and remedy such incident (including notifying the affected users in compliance with applicable laws and taking any other actions reasonably requested by us and Facebook).
- Upon our or Facebook’s written request from time to time, you must permit us, Facebook and third-party professionals working at our or Facebook’s direction (including auditors, attorneys, consultants, and/or computer forensic analysts) (collectively, Auditors) to review or audit your books, records, agreements, access logs, third party audit and examination reports, systems (both real and virtual), networks, technologies, facilities (including physical and remote access to data centres and cloud facilities), controls, processes, policies and procedures, which relate to the Chatter Facebook Data and/or the Facebook Chat Services to review your compliance with the Facebook Online Terms and this Schedule (Compliance Review).
- You must use commercially reasonable efforts to obtain permission from any Service Providers for us, Facebook and/or the Auditors (as applicable) to perform the Compliance Review.
- You must provide us, Facebook and/or the Auditors (as applicable) such information and assistance (including access to your personnel who are knowledgeable regarding your access to and use of the Chatter Facebook Data and/or the Facebook Chat Services), at your sole expense, as reasonably requested in order to perform the Compliance Review.
- Any Compliance Review will be conducted during normal business hours and with at least 5 business days’ prior written notice, unless urgent circumstances, such as indications of unauthorised access to or use of personal data, require immediate access.
- If any Compliance Review reveals any non-compliance:
- you must reimburse us and/or Facebook (as applicable) for all reasonable costs and expenses of the Compliance Review and all re-reviews (if the non-compliance was material);
- you must immediately remedy such non-compliance;
- upon completion of such remediation, your authorised officer must certify in writing to us and/or Facebook (as applicable) that you have addressed the non-compliance, and that you are now in compliance, and should you become aware of any additional non-compliance following your certification you will let us and/or Facebook (as applicable) know immediately but no later than 10 days after the discovery of such non-compliance; and
- upon our and/or Facebook’s written request, we and/or Facebook may re-review you in accordance with this section 4 until you are in compliance.
- You must ensure that any Service Providers comply with the Facebook Online Terms and this Schedule (including any data security obligations) as if such Service Providers were in your place, and you are responsible and liable for such Service Providers’ acts and omissions (e.g., each of your Service Providers’ acts and omissions will be deemed your acts or omissions for the purposes of the Facebook Online Terms and this Schedule).
- You must ensure that such Service Providers are contractually required to only use, and do only use, Chatter Facebook Data (on your behalf) for the sole purpose of enabling you to access and use the Facebook Chat Services and for no other purpose (including for the Service Providers’ own purposes).
- We and/or Facebook may at any time prohibit the use of any Service Provider in connection with the Chatter Facebook Data and/or the Facebook Chat Services, effective upon notice to you, and you must immediately comply with any such prohibition.
- You must maintain an up-to-date list of each of your Service Providers and the types of Chatter Facebook Data shared with such Service Providers and upon our and/or Facebook’s request you must provide us and/or Facebook (as applicable) with such information.
Relationships with Facebook
- You acknowledge that Facebook may:
- require that you agree to the Facebook Online Terms and/or Facebook Supplemental Terms before accessing or using the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services; and
- limit, suspend or terminate your access to or use of the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services until you have agreed to the Facebook Online Terms and, if applicable, the Facebook Supplemental Terms.