AI BIZ GURU – SOFTWARE AS A SERVICE AGREEMENT
EFFECTIVE DATE: [EFFECTIVE_DATE]
BETWEEN:
ETC-AI, Inc., a Delaware corporation with its principal place of business at 1000 Brickell Av. 715, Ste 1066, Miami, FL, 33131 (“Provider“)
AND:
[CUSTOMER_NAME], a [CUSTOMER_ENTITY_TYPE] with its principal place of business at [CUSTOMER_ADDRESS] (“Customer“)
Provider and Customer may be referred to individually as a “Party” and collectively as the “Parties.”
1. DEFINITIONS
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of more than 50% of such entity’s voting securities or equity interests.
1.2 “Agreement” means this AI BIZ GURU Software as a Service Agreement, together with all Order Forms, exhibits, and attachments hereto.
1.3 “AI BIZ GURU” means Provider’s proprietary artificial intelligence business optimization platform and its component agents, including any updates, upgrades, modifications, and enhancements thereto provided by Provider during the Term.
1.4 “Authorized User” means Customer’s and its Affiliates’ employees, contractors, and consultants who are authorized by Customer to access and use AI BIZ GURU.
1.5 “Business Data” means all data, content, and information (including business metrics, operational data, and related information) owned, held, used, or created by or on behalf of Customer or any Authorized User that is processed using AI BIZ GURU.
1.6 “Confidential Information” means all non-public information disclosed by either Party to the other Party, whether orally, in writing, or by other means, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business plans, technology, technical information, product designs, and business processes. AI BIZ GURU, Documentation, and Provider Technology are the Confidential Information of Provider. Business Data is the Confidential Information of Customer.
1.7 “Documentation” means Provider’s user manuals, handbooks, and guides relating to AI BIZ GURU provided by Provider to Customer either electronically or in hard copy form.
1.8 “Provider Technology” means AI BIZ GURU, the Documentation, and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider Technology includes any and all software, algorithms, methodologies, frameworks, tools, databases, analytics engines, agents, interfaces, reports, and features provided by or on behalf of Provider as part of AI BIZ GURU, as well as any documentation, updates, upgrades, modifications, enhancements, and derivative works thereof.
1.9 “Feedback” means any ideas, suggestions, or feedback provided by Customer regarding AI BIZ GURU.
1.10 “Order Form” means the document(s) executed by the Parties that specifies the AI BIZ GURU subscription plan, applicable fees, user limits, and other terms specific to Customer’s subscription.
1.11 “Professional Services” means implementation, integration, training, consulting, or other professional services provided by Provider to Customer in connection with AI BIZ GURU.
1.12 “Service Level Agreement” or “SLA” means Provider’s commitments related to uptime, availability, and performance as set forth in Exhibit B attached hereto.
1.13 “Subscription Fee” means the fees payable by Customer to Provider for the subscription to AI BIZ GURU, as specified in an Order Form.
1.14 “Term” means the Initial Term plus any Renewal Terms, as defined in Section 11.1.
2. LICENSE GRANT AND RESTRICTIONS
2.1 License Grant. Subject to Customer’s compliance with the terms and conditions of this Agreement, including payment of all applicable fees, Provider hereby grants to Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable license to: (a) access and use AI BIZ GURU solely for Customer’s internal business purposes; (b) permit Authorized Users to access and use AI BIZ GURU in accordance with the terms of this Agreement; and (c) use the Documentation in connection with Customer’s permitted use of AI BIZ GURU.
2.2 License Restrictions. Customer shall not, and shall not permit any Authorized User or third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make AI BIZ GURU available to any third party, other than Authorized Users; (b) modify, adapt, alter, translate, or create derivative works of AI BIZ GURU or the Documentation; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying ideas or algorithms of AI BIZ GURU; (d) remove, alter, or obscure any proprietary notices on AI BIZ GURU or the Documentation; (e) use AI BIZ GURU to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (f) use AI BIZ GURU to store or transmit malicious code or viruses; (g) interfere with or disrupt the integrity or performance of AI BIZ GURU or third-party data contained therein; (h) attempt to gain unauthorized access to AI BIZ GURU or its related systems or networks; (i) exceed the usage limits specified in the applicable Order Form; or (j) use AI BIZ GURU in a manner other than as expressly permitted in this Agreement.
2.3 Authorized Users. Customer shall ensure that each Authorized User complies with the terms and conditions of this Agreement. Customer shall be responsible for any breach of this Agreement by an Authorized User. Customer shall: (a) maintain the confidentiality of all access credentials for AI BIZ GURU; (b) immediately notify Provider of any unauthorized use of such access credentials or any other breach of security; and (c) ensure that all Authorized Users exit or log off from AI BIZ GURU at the end of each session. Customer shall be liable for all activities conducted through its account, whether or not authorized.
2.4 Reservation of Rights. Except for the limited license rights expressly granted in this Agreement, Provider and its licensors reserve all right, title, and interest in and to AI BIZ GURU, the Documentation, and the Provider Technology, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
3. PROFESSIONAL SERVICES
3.1 Professional Services. Provider shall provide the Professional Services specified in the applicable Order Form or Statement of Work (each, an “SOW“). Each SOW shall include, at a minimum, a description of the Professional Services to be performed, any deliverables to be provided, the schedule for performance, and the applicable fees and payment terms.
3.2 Performance of Professional Services. Provider shall perform the Professional Services in a professional and workmanlike manner in accordance with industry standards and the terms of the applicable SOW. The customer shall provide Provider with reasonable and timely cooperation, assistance, information, and materials that Provider may reasonably require to perform the Professional Services.
3.3 Professional Services Warranty. Provider warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with industry standards. As Customer’s sole and exclusive remedy for Provider’s breach of this warranty, Provider shall, at its option, either re-perform the non-conforming Professional Services at no additional charge or refund the fees paid for the non-conforming Professional Services, provided that Customer notifies Provider in writing of the breach within thirty (30) days after the Professional Services are performed.
4. CUSTOMER RESPONSIBILITIES
4.1 Customer Obligations. Customer shall: (a) be responsible for Authorized Users’ compliance with this Agreement; (b) be responsible for the accuracy, quality, and legality of Business Data and the means by which it was acquired; (c) use commercially reasonable efforts to prevent unauthorized access to or use of AI BIZ GURU, and notify Provider promptly of any such unauthorized access or use; (d) use AI BIZ GURU only in accordance with applicable laws and regulations; and (e) comply with all terms and conditions of this Agreement, including the terms of any Order Forms.
4.2 Customer Systems. Customer shall be solely responsible for obtaining and maintaining all computer hardware, software, communications equipment, and network connections necessary to access and use AI BIZ GURU, and for ensuring that its systems meet the minimum requirements specified by Provider. Customer acknowledges that the quality of the service, response time, and access to AI BIZ GURU may be affected by Customer’s hardware, software, and network connectivity.
4.3 Business Data. Customer represents and warrants that: (a) it has all rights, permissions, and consents necessary to allow Provider to process Business Data as contemplated by this Agreement; (b) Customer’s provision of Business Data to Provider and Provider’s processing of Business Data in accordance with this Agreement will not violate any law, regulation, or third-party rights; and (c) Provider’s use of Business Data in accordance with this Agreement will not subject Provider to any liability.
5. SUPPORT AND SERVICE LEVELS
5.1 Support Services. During the Term, Provider shall provide the support services described in the Support Services Schedule attached as Exhibit C (“Support Services“) to Customer in accordance with the support level specified in the applicable Order Form.
5.2 Service Levels. Provider shall provide the service levels specified in the Service Level Agreement attached as Exhibit B. In the event Provider fails to achieve the service levels, Customer shall be entitled to the remedies specified in the SLA, which shall be Customer’s sole and exclusive remedies for such failure.
5.3 Updates and Upgrades. During the Term, Provider shall make available to Customer, at no additional charge, all updates and upgrades to AI BIZ GURU that Provider generally makes available to its other customers at no additional charge. “Updates” means bug fixes, patches, and minor improvements to AI BIZ GURU that do not include new functionality. “Upgrades” means new versions of AI BIZ GURU that include new functionality.
6. DATA SECURITY AND PRIVACY
6.1 Data Security. Provider shall implement and maintain appropriate technical, organizational, and physical safeguards to protect the security, confidentiality, and integrity of Business Data, as described in the Security Requirements Exhibit attached hereto as Exhibit D. Provider shall not materially decrease the overall security of AI BIZ GURU during the Term.
6.2 Security Incident Response. In the event of a confirmed Security Incident affecting Business Data, Provider shall: (a) notify Customer without undue delay after becoming aware of the Security Incident; (b) take reasonable steps to mitigate the effects and minimize the damage of any Security Incident; and (c) take reasonable steps to investigate and remediate the cause of such Security Incident. “Security Incident” means an actual unauthorized access to or acquisition of Business Data.
6.3 Data Privacy. To the extent that Business Data includes personal data (as defined in applicable data protection laws), the terms of the Data Processing Addendum (“DPA“) attached hereto as Exhibit A shall apply and the Parties agree to comply with such terms.
6.4 Customer’s Security Responsibilities. Customer agrees that, without limiting Provider’s obligations under this Agreement, Customer is solely responsible for: (a) its use of AI BIZ GURU, including making appropriate use of the platform to maintain a level of security appropriate to the risk in respect of Business Data; (b) securing the account authentication credentials, systems, and devices that Customer uses to access AI BIZ GURU; and (c) backing up Business Data.
7. PROPRIETARY RIGHTS
7.1 Business Data. As between Customer and Provider, Customer owns all right, title, and interest in and to Business Data. Customer hereby grants to Provider a non-exclusive, worldwide, royalty-free license to process, reproduce, display, and otherwise use the Business Data solely to the extent necessary to provide AI BIZ GURU, Support Services, and Professional Services to Customer and as otherwise expressly permitted in this Agreement.
7.2 Provider Technology. As between Customer and Provider, Provider owns all right, title, and interest in and to the Provider Technology, including all intellectual property rights therein. Provider hereby grants to Customer a limited, non-exclusive, non-transferable license during the Term to use the Provider Technology solely for Customer’s internal business purposes in connection with Customer’s use of AI BIZ GURU in accordance with this Agreement.
7.3 Usage Data. Notwithstanding anything to the contrary herein, Provider may collect, use, and disclose data regarding Customer’s use of AI BIZ GURU, including usage statistics, patterns, and performance data (“Usage Data“), provided that such Usage Data does not include any Business Data or Confidential Information of Customer. Provider may use Usage Data to operate, improve, and support AI BIZ GURU, and for other business purposes, including developing new products and services.
7.4 Aggregated Data. Provider may collect, use, and disclose aggregated and anonymized data derived from Business Data for improving Provider’s products and services, developing new products and services, and other business purposes, provided that such data does not identify Customer or include Customer’s Confidential Information.
7.5 Feedback. If Customer provides Provider with any Feedback, Customer hereby grants Provider a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to use the Feedback for any purpose without restriction or obligation to Customer. Provider shall own all enhancements and modifications it makes to AI BIZ GURU, regardless of whether such enhancements or modifications incorporate Customer’s Feedback.
8. FEES AND PAYMENT
8.1 Fees. Customer shall pay all fees specified in the Order Form(s) (“Fees“). Except as otherwise specified in this Agreement or an Order Form, (a) Fees are based on AI BIZ GURU subscriptions purchased and not actual usage; (b) payment obligations are non-cancelable and Fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Term.
8.2 Invoicing and Payment. Provider shall invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced amounts are due within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information.
8.3 Overdue Charges. If any invoiced amount is not received by Provider by the due date, then without limiting Provider’s rights or remedies, those charges may accrue late interest at the rate of [LATE_FEE_PERCENTAGE]% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
8.4 Suspension of Services. If any amount owing by Customer under this Agreement is [SUSPENSION_DAYS] or more days overdue, Provider may, without limiting its other rights and remedies, suspend Customer’s and its Authorized Users’ access to AI BIZ GURU until such amounts are paid in full, provided Provider has given Customer at least [NOTICE_DAYS] days’ prior notice that its account is overdue.
8.5 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Provider’s net income, property, or employees. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Provider will invoice Customer and Customer will pay that amount unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.6 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.
9. CONFIDENTIALITY
9.1 Confidentiality Obligations. Each Party agrees to protect the Confidential Information of the other Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Each Party agrees not to use any Confidential Information of the other Party for any purpose outside the scope of this Agreement, and except as otherwise authorized by the disclosing Party in writing, to limit access to Confidential Information of the other Party to those of its and its Affiliates’ employees, contractors, and agents who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections not materially less protective than those herein.
9.2 Exclusions. Confidential Information excludes information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to the receiving Party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing Party; (c) is received from a third party without breach of any obligation owed to the disclosing Party; or (d) was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
9.3 Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party to the extent required by law or legal process, provided that the receiving Party: (a) gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted); (b) reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure; and (c) discloses only the minimum amount of Confidential Information required to be disclosed.
9.4 Remedies. Each Party acknowledges that any breach of this Section 9 may cause the disclosing Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that the disclosing Party shall be entitled to seek equitable relief, including injunctive relief, for any breach or threatened breach of this Section 9, in addition to all other remedies available at law or in equity.
9.5 Duration. The obligations in this Section 9 will survive for a period of [CONFIDENTIALITY_TERM] years after the termination or expiration of this Agreement, except with respect to Confidential Information that constitutes a trade secret, in which case the obligations of confidentiality shall continue for as long as such information remains a trade secret under applicable law.
10. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
10.1 Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) this Agreement constitutes a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms; and (c) it shall comply with all applicable laws and regulations in performing its obligations and exercising its rights under this Agreement.
10.2 Provider Warranties. Provider represents and warrants that: (a) AI BIZ GURU will perform materially in accordance with the Documentation; (b) Provider will not materially decrease the functionality of AI BIZ GURU during the Term; (c) Provider owns or otherwise has sufficient rights to the Provider Technology to grant the rights and licenses described in this Agreement; (d) to Provider’s knowledge, AI BIZ GURU does not infringe or misappropriate any intellectual property rights of any third party; and (e) Provider will use industry standard measures to prevent the introduction of any virus, worm, Trojan horse, or similar harmful code into AI BIZ GURU.
10.3 Customer Warranties. Customer represents and warrants that: (a) it owns or otherwise has sufficient rights to the Business Data to grant the rights and licenses described in this Agreement; (b) Business Data does not infringe or misappropriate any intellectual property rights of any third party; and (c) Customer has obtained all necessary consents, approvals, and authorizations to provide Business Data to Provider.
10.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT AI BIZ GURU WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT AI BIZ GURU WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT AI BIZ GURU MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
