This Terms of Use Agreement (the "Terms") is entered into between General Context, Inc. ("General Context") and the entity who has been named as the enterprise customer upon registration of an account online at spyglass.so ("Customer"), and governs Customer's access to and use of the Services ordered through the https://spyglass.so/ website. These Terms, together with any DPA (as defined below), and attached exhibits or schedules, constitute the complete understanding between the parties on the subject matter herein ("Agreement") and is effective upon Customer's initial access to and use of the Platform (as defined below) ("Effective Date").
By accessing or using the Platform or agreeing to these Terms (including via clickthrough acceptance), Customer agrees to be bound by these Terms and the other terms and conditions of the Agreement. For individuals who are registering an account on behalf of a Customer, you represent and warrant that you have all right, permission, and authority necessary to enter into this Agreement on behalf of the Customer and to bind Customer to the terms of this Agreement, including to make any purchases made through the Customer's registered account, and to provision access to other Authorized Users in accordance with the Terms hereof. If Customer does not accept these Terms, Customer is not authorized to access or use the Platform or Services. Please note that these Terms are subject to change by General Context in its discretion at any time. When changes are made to these Terms, General Context will make a copy of the updated Terms available to Customer via email or on the General Context website and update the "Last Updated" date at the top of these Terms. If General Context makes material changes to these Terms, General Context will provide written notice of such material changes and attempt to notify Customer by sending an email notice to Customer. Any changes to the Terms will be effective upon the earlier of (a) thirty (30) days after the "Last Updated" date at the top of these Terms, or (b) Customer's consent to and acceptance of the updated Terms if General Context provides a mechanism for Customer's immediate acceptance in a specified manner (e.g., clickthrough acceptance), which General Context may require before further access to and use of the Platform or Services is permitted.
In consideration of the mutual promises contained herein, the parties herby agree to the following:
2. PROVISION OF SERVICES
2.1 License to Platform
Subject to and conditioned on Customer's payment of Fees and compliance with all the terms and conditions of this Agreement, General Context grants to Customer a non-exclusive, non-transferable license during the term, solely for use by Authorized Users in accordance with the terms and conditions herein, (a) to access and use the features and functions of the Platform as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer's use of the Services. Such use is limited to Customer's internal business use.
2.2 Connected Accounts
In order to access certain of the features and functions of the Services, Customer may be required to link or provide access to its Connected Accounts to the Platform or Services. By granting General Context access to any Connected Account, (i) Customer represents and warrants that it is entitled to disclose any log-in information provided by Customer in connection therewith (if applicable) and/or to grant General Context access to such Connected Accounts, (ii) Customer represents and warrants that it is in good standing with respect to such Connected Accounts, and (iii) Customer acknowledges that General Context may access Connected Account Data so that it may be used in accordance with the terms of this Agreement. Subject to Customer's compliance with this Agreement and any applicable terms governing the Connected Accounts, Authorized Users may retrieve data from, and transmit data to, Connected Accounts through the Platform. Customer further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. General Context will have no liability for any unavailability of any Connected Account, or any third-party provider's decision to discontinue, suspend or terminate any Connected Account.
2.3 Personal Data
To the extent General Context Processes Personal Data on behalf of Customer in the course of providing the Services, such Personal Data will be Processed in accordance with the Data Processing Addendum ("DPA") available at spyglass.so/privacy. Any Personal Data that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
2.4 Artificial Intelligence Tools
Subject to this Agreement, General Context makes available through the Services certain artificial intelligence tools in connection with Customer's use of the Platform (collectively, the "AI Tools"). Except where expressly specified otherwise in this Agreement, the AI Tools constitute a "Service" for the purposes of the Agreement and the Agreement shall apply in full to Customer's use of the AI Tools. The AI Tools leverage third party large language models and artificial intelligence algorithms and platforms ("Third-Party Services") to produce text, images, videos and other materials for commercial use (collectively, the "Output") in response to certain inputs, data, images, videos and other Customer Material which may be made submitted or made available through the Services ("Inputs"). General Context does not make any representations with respect to Third-Party Services or any Output provided in connection therewith. Such Third-Party Services are not under the control of General Context and do not form part of the Platform. General Context is not responsible for any Third-Party Services or Output generated thereby and Customer uses such Third-Party Services and Output at its own risk. By using the Services, Customer and its Authorized Users agree to be bound by and shall comply with all terms of use and other terms and conditions imposed by the Third-Party Services ("Third-Party Licenses"). Third-Party Licenses applicable to the Third-Party Services that differ from the terms of this Agreement will be presented to Customer prior to use. Use of certain Outputs may be governed by such Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement. As between the parties, each of the Inputs and Output are considered "Customer Material" for the purposes of the Agreement, provided that such Inputs may be provided to Third-Party Services in order for you to access the AI Tools, and such Third-Party Services may not be required to maintain the confidentiality of any Inputs or Output. Notwithstanding the foregoing, General Context shall not provide Customer Material to any Third-Party Services for the purpose of training such Third-Party Services' algorithmic models, and General Context shall use commercially reasonable efforts to ensure that its agreements with Third-Party Services prohibit the use of Customer Material for such purposes.
3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
3.1 Restrictions
Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User (as applicable) or other party to: (a) permit any party to access the Platform or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Platform or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (e) use or copy the Platform or Documentation except as expressly allowed under this subsection; (f) disclose or transmit any data contained in the Platform to any individual other than an Authorized User, except as expressly allowed herein; or (g) use or access the Platform or Services in any personal, household, or familial capacity, or for any purpose other than a lawful business purpose. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Platform, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Platform.
3.2 Setup Responsibilities
Customer shall be responsible for obtaining and maintaining, at Customer's expense, all of the necessary telecommunications, computer hardware, mobile devices, software, services and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. In the event that General Context assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
3.3 Customer Responsibility for Data and Security
Customer and its Authorized Users shall have access to the Customer Material and shall be responsible for all changes to and/or deletions of Customer Material and the security of all passwords and other Access Protocols required in order the access the Services. Customer shall have the ability to export Customer Material out of the Services and is encouraged to make its own back-ups of the Customer Material. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Material. In the ordinary course of its business, General Context performs back-ups of Customer Material; however, General Context is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Material.
3.4 Responsible Use of AI Tools
Customer shall comply with all obligations and commitments in the Agreement with respect to Customer Material in connection with Customer's use of the AI Tools. Customer is solely responsible for the Inputs, and use of the Outputs thereof. Without limiting the disclaimers in Section 6.3 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer's representations and warranties under the Agreement, Customer shall not submit or use any Inputs that: (a) infringe or misappropriates any third party's intellectual property rights or other proprietary rights; (b) violate applicable laws, rules, and regulations; (c) include any Sensitive Information, except as agreed to by General Context in writing, (d) contain any viruses, worms or other malicious computer programming codes that may damage the Platform; or (e) violates Third-Party Terms. General Context reserves the right to suspend or terminate your access to the AI Tools for any failure by Customer or an Authorized User to comply with this Section. In addition to the foregoing, Customer's obligations under the Agreement with respect to use of the Services, its representations and warranties and indemnification obligations, shall apply in full with respect to Customer's use of the AI Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the AI Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
4. OWNERSHIP AND DATA RIGHTS
4.1 General Context Intellectual Property
As between General Context and Customer, the Services, Platform, Documentation, Integration Tools, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of General Context and its suppliers. All rights in and to the Services, Platform, Documentation and Integration Tools not expressly granted to Customer in this Agreement are reserved by General Context and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, Documentation, Integration Tools, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Platform or Integration Tools.
4.2 Customer Material
Customer is solely responsible for any and all obligations with respect to the accuracy, quality, completeness, and legality of Customer Material. Customer will obtain all third-party licenses, consents and permissions needed for General Context to use the Customer Material to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for General Context to use the Customer Material submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants General Context a non-exclusive, worldwide, royalty-free and fully paid license to use the Customer Material as necessary for purposes of providing and/or improving the Services. The Customer Material hosted by General Context as part of the Services, and all worldwide Intellectual Property Rights in and to the foregoing, are the exclusive property of Customer. All rights in and to the Customer Material not expressly granted to General Context in this Agreement are reserved by Customer.
4.3 Aggregated Data
Notwithstanding anything to the contrary in this Agreement, General Context may monitor Customer's use of the Services and collect and compile Aggregated Data. As between General Context and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by General Context. Customer acknowledges that General Context may compile Aggregated Data based on Customer Material and may use the Customer Material and Aggregated Data to improve its machine learning model and artificial intelligence algorithms (collectively, "Models"). All right, title, and interest in and to the Models are retained by General Context, regardless of whether such Models are trained on or otherwise fine tuned using Customer Material. Customer agrees that General Context may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer's Confidential Information.
4.4 Feedback
If Customer or any of its employees or contractors sends or transmits any communications or materials to General Context by mail, email, telephone, or otherwise, suggesting or recommending changes to General Context's intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), General Context is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to General Context on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and General Context is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although General Context is not required to use any Feedback.
5. FEES AND EXPENSES; PAYMENTS
5.1 Fees and Expenses
Customer shall pay to General Context, without offset or deduction, the fees and expenses as listed on General Context's pricing page ("Fees"), in accordance with the payment terms set forth in Section 5.3 below. Customer may be required to have a payment method linked to Customer's account. By providing General Context and/or our Third-Party Service Provider (defined hereunder) with Customer's payment information, Customer agrees that General Context and/or our Third-Party Service Provider is authorized to immediately invoice and charge Customer's account for all Fees due and payable to General Context hereunder and that no additional notice or consent is required. Customer shall immediately notify General Context of any change in Customer's payment information to maintain its completeness and accuracy. General Context reserves the right to increase the Fees following the Initial Term, and each Renewal Term thereafter, but must provide notification of such increases at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.
5.2 Taxes
The fees and other amounts payable by Customer to General Context do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon General Context's net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse General Context for any taxes payable or collectable by General Context (other than taxes based upon General Context's net income). If Customer has provided General Context with proof of its tax exempt status, then, in the event that Customer's tax exempt status should become altered, Customer shall be obligated to notify General Context immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify General Context of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against General Context or Customer as a result of such Customer failure.
5.3 Payment Terms
General Context may accept and process payment (including renewals) from Customer by either credit card (e.g., Visa, MasterCard, or any other issuer accepted by General Context), wire transfer, or check. With respect to payments made (other than by credit card), such amounts will be due and payable in advance. If payment will be made by credit card, General Context will process payment (including renewals) from Customer based on any credit card information General Context is provided by Customer. Customer's credit card agreement governs its use of the designated credit card or account. By providing General Context with credit card information, Customer agrees that General Context is authorized to invoice and charge Customer's account for all fees and charges due and payable to General Context and that no additional notice or consent is required. If Customer's credit card issuer rejects any amount charged on Customer's credit card, then General Context will notify Customer thereof and Customer will timely pay the fees and expenses by check or wire transfer. In the event Customer pays by credit card, the amount of fees shall be increased by 3.5% to cover credit card processing fees. If payment will be made by check or if Customer's credit card issuer rejects any amount charged on Customer's credit card, amounts owed to General Context will be invoiced to Customer's address for invoices as designated by Customer or, if not designated, then the address printed on this Agreement. If any Customer payment is more than thirty (30) days past due, interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars.
5.4 Payment Processor
General Context uses Stripe, Inc. (together with its affiliates) as its third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (a "Third-Party Service Provider"). The Third-Party Service Provider may be updated from time to time by Customer in its sole discretion. Customer may be required to provide its payment details and additional information required hereunder to a Third-Party Service Provider. Customer hereby agrees to be bound by Stripe's Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa), and Customer hereby consents and authorizes General Context to share any information and payment instructions Customer provides with one or more Third-Party Service Provider(s) to the minimum extent required to complete Customer's transactions. Online payment transactions may be subject to validation checks by General Context's Third-Party Service Provider and/or Customer's card issuer, and General Context is not responsible if Customer's card issuer declines to authorize payment for any reason.
5.5 Suspension
In the event that Customer's account is overdue on any payment for any reason, General Context shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer's use of the Platform or Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties
Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
6.2 Customer Warranty
Customer represents and warrants to General Context that: (1) Customer owns the Customer Material, or has the necessary licenses, rights, consents, and permissions to authorize General Context to use the Customer Material in accordance with this Agreement; (2) Customer Material and the use of Customer Material as contemplated by this Agreement does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) violate, or cause General Context to violate, any law or regulation; or (c) contain any viruses, worms or other malicious computer programming codes intended to damage General Context's system or data; and (3) Customer will use the Services and Platform in compliance with the Documentation, any instructions provided by General Context, and applicable law. General Context may monitor Customer's use of the Services and may prohibit any use of the Services or Platform it believes may be in violation of the foregoing warranties or applicable law.
6.3 Disclaimers
General: EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, GENERAL CONTEXT MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PLATFORM, DOCUMENTATION, INTEGRATION TOOLS, AGGREGATED DATA, INPUTS, OUTPUTS, SERVICES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PLATFORM, DOCUMENTATION, INTEGRATION TOOLS AND SERVICES ARE PROVIDED "AS IS." GENERAL CONTEXT DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, INTEGRATION TOOLS OR SERVICES WILL SATISFY CUSTOMER'S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
AI Tools Disclaimer: THE AI TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND GENERAL CONTEXT MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED, OR COMPLETE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. GENERAL CONTEXT DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE AI TOOLS LEVERAGE THIRD-PARTY SERVICES AND THAT GENERAL CONTEXT IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD GENERAL CONTEXT LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER'S USE OF THE AI TOOLS AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER'S SPECIFIC USE CASE.
Connected Accounts: Customer acknowledges that General Context has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Accounts or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Account Data. General Context will have no liability with respect to any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any downtime, unavailability, inaccuracies or failures of any Connected Accounts.
7. LIMITATION OF LIABILITY
7.1 Exclusion of Damages
EXCEPT WITH RESPECT TO LIABILITY ARISING FROM BREACHES OF CONFIDENTIALITY UNDER SECTION 8, MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY'S INDEMNIFICATION OBLIGATIONS (COLLECTIVELY, "EXCLUDED LIABILITY"), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS SECTION WILL APPLY SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7.2 Amount of Damages
EXCEPT WITH RESPECT TO EXCLUDED LIABILITY, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) THE FEES PAID OR PAYABLE BY CUSTOMER TO GENERAL CONTEXT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
7.3 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. CONFIDENTIALITY
8.1 Confidential Information
During the term of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of General Context.
8.2 Protection of Confidential Information
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees or subcontractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to General Context). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
8.3 Exceptions
The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9. INDEMNIFICATION
9.1 By General Context
General Context will indemnify and hold harmless, at its own expense, Customer from and against any and all threatened third-party claim, proceeding, or suit (each, a "Claim"), and pay all liabilities, losses, damages, costs, and other expenses (including attorneys' and expert witnesses' costs and fees), arising out of or relating to an allegation that the Platform, when used by Customer as authorized herein, infringes or misappropriates a third party's patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform becomes, or in General Context's opinion is likely to become, the subject of a claim of infringement, General Context may, at General Context's option: (a) procure for Customer the right to continue using the Platform; (b) replace the Platform (or infringing component) with non-infringing software or services which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Platform and other Services. Notwithstanding the foregoing, General Context will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) Third-Party Services, Inputs, or Outputs, (ii) any use of the Platform not in accordance with this Agreement or as specified in the Documentation; (iii) any use of the Platform in combination with other products, equipment, software or data not supplied by General Context; or (iv) any modification of the Platform by any person other than General Context or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of General Context, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer
Customer will indemnify and hold harmless, at its own expense, General Context and its affiliates, employees, directors, and agents from and against any and all Claims, and pay all liabilities, losses, damages costs and other expenses (including attorneys' and expert witnesses' costs and fees) arising out of or relating to (a) Customer's breach or alleged breach of Sections 3.1, 3.4 and/or 6.2; (b) any agreement between Customer and a Connected Account or Customer; or (c) Customer's use of the Inputs and/or Outputs.
9.3 Procedure
The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnifying party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnified party shall not agree to settle any such claim without the indemnifying party's express prior written consent. The indemnified party may participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense of the Claim.
10. TERM AND TERMINATION
10.1 Term
This term of this Agreement will commence on the Effective Date and will continue for one (1) year ("Initial Term"), unless earlier terminated in accordance with the Agreement. Thereafter, the Initial Term will automatically renew for additional terms of the same duration (each, a "Renewal Term"), unless either party gives written notice of its intent not to renew to the other party no later than sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term. In the event Customer terminates in the middle of the Initial Term or any Renewal Term, Customer will continue to have access to the Platform for the remainder of the then-current Initial Term or Renewal Term, but Customer will not be entitled to a refund of any Fees pre-paid for such Services for such Initial Term or Renewal Term.
10.2 Termination for Breach
Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than fourteen (14) days after receipt of written notice of such breach.
10.3 Effect of Termination
Upon the expiration or termination of this Agreement, all rights and licenses granted by General Context to Customer under this Agreement will terminate. Either party's termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
10.4 Post-Termination Obligations
Unless Customer terminates this Agreement for material breach, if this Agreement expires or is terminated: (1) General Context will not refund Customer any Fees paid in advance of such expiration or termination, including pre-paid Fees; and (2) within ten days after such expiration or termination, Customer shall pay General Context all remaining Fees such that General Context is paid the full annual amount agreed to at the commencement of such Initial Term or Renewal Term, as applicable (as if the then-current Initial Term or Renewal Term had run its full course). Sections 1, 3.1, 4, 6.3, 7, 8, 9, 10.4, 10.5 and 11 will survive expiration or termination of this Agreement for any reason.
11. MISCELLANEOUS
11.1 Governing Law and Venue
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. In the event a dispute arises between the parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in New York, New York, in accordance with the Commercial Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association. The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
11.2 Export
Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from General Context, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability
If any provision of this Agreement or a portion of a provision is held to be invalid, illegal, or unenforceable, the rest of this Agreement will remain enforceable.
11.4 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 Remedies
Except as provided in Section 9, the parties' rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services, Platform, Integration Tools, and Documentation contain valuable trade secrets and proprietary information of General Context, that any actual or threatened breach of Sections 4 or 8 or any other breach by Customer of its obligations with respect to Intellectual Property Rights of General Context will constitute immediate, irreparable harm to General Context for which monetary damages would be an inadequate remedy. In such case, General Context will be entitled to seek immediate injunctive relief or other equitable relief without the requirement of posting bond, including an order that any Platform, Documentation, Integration Tools, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
11.6 No Assignment
Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of General Context, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. This Agreement shall inure to the benefit of each party's permitted successors and assigns.
11.7 Publicity
General Context may publicly list Customer as a customer of General Context and, subject to Customer's brand guidelines, use Customer's trademark, trade name, and logo solely for marketing or promotional purposes.
11.8 Force Majeure
Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, quarantine, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.9 Relationship of the Parties
Customer's relationship to General Context is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of General Context.
11.10 Notices
All notices required or permitted under this Agreement must be delivered in writing, if to General Context, by emailing sawyer@generalcontext.com, and if to Customer, by emailing the e-mail address included within an Customer's account profile on the Platform, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the signature page of this Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.11 Entire Agreement
This Agreement (including the DPA, as applicable) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.