Attentive Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) IS BETWEEN ATTENTIVE MOBILE INC., DOING BUSINESS AS ATTENTIVE, (“Attentive”), AND THE ENTITY IDENTIFIED AS THE CUSTOMER (“Customer”) IN THE ATTENTIVE ORDER FORM (“Order Form”). THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE SERVICE (DEFINED BELOW) AND ANY RELATED PROFESSIONAL SERVICES SET FORTH IN ANY ORDER FORM (“Professional Services”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, THEN YOU MUST NOT ACCEPT THIS AGREEMENT.
1. Scope of Agreement; Certain Definitions. This Agreement governs Attentive’s provision of access to its software-as-a-service product known as Attentive® (“Platform”) and related Professional Services to Customer and its Authorized Users (defined below). The Platform may include certain templates or other materials provided by Attentive to help Customer communicate effectively with Subscribers (defined below) (“Templates,” together with the Platform, and Attentive AI Tools (defined below) the “Service”). As used herein, the term “Authorized User” means any employee or contractor (including any third-party service provider) of Customer for whom Customer has created an account to access and use the Platform through the functionality available on Attentive’s website located at https://www.attentive.com. Customer grants Attentive permission for Attentive to make modifications on its and its Authorized Users’ accounts on their behalf in accordance with any specific instructions by Customer or its Authorized Users. The Service that Attentive is to provide to Customer is described in one or more Order Forms. This Agreement hereby incorporates by reference any such Order Form. In the event of any conflict or inconsistency between the terms of any Order Form and the body of this Agreement, the Order Form will control solely to the extent of the conflict or inconsistency.
2. Proprietary Rights.
a. License to Service. Subject to the terms and conditions of this Agreement, Attentive hereby grants to Customer during the Term (defined below) a non-exclusive, non-transferable (except pursuant to Section 11(c) (Assignment) below) and non-sublicensable license to allow the Authorized Users to access and use the Platform (and Templates) solely to conduct message-based marketing for Customer’s business.
b. Restrictions. Customer and Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of any third party or provide any third party except for Authorized Users with access to the Service; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Service in a manner that violates this Agreement, any third-party rights or any applicable laws, or rules or regulations; or (vii) access the Service to build a competitive product or services or copy any ideas, features, functions, or graphics of the Service. Customer acknowledges and agrees that it is responsible for the use or misuse of the Service by Authorized Users. Any action taken or breach of this Agreement by an Authorized User will be deemed an action taken or a breach of this Agreement by Customer. Without limiting the foregoing, Customer is responsible for the proper care and use of Customer’s and Authorized Users’ access credentials and responsible for any actions resulting from the use of Customer’s or its Authorized Users’ access credentials.
c. Attentive Ownership of Service. Except for the rights granted to Customer in Section 2(a) (License to Service) above, as between the parties, Attentive retains all right, title and interest, including all intellectual property rights, in and to the Service, the Attentive Works (defined below) and data regarding use of the Service and the Platform’s performance that is aggregated and de-identified such that it cannot identify Customer, any third-party entity, or any natural persons (“Diagnostic Data”). All rights that Attentive does not expressly grant to Customer in this Agreement are hereby reserved. Attentive does not grant any implied licenses under this Agreement.
d. Customer Data. As between the parties, Customer owns all Customer Data (defined below). Customer hereby grants to Attentive a non-exclusive and non-transferable (except pursuant to Section 11(c) (Assignment) below) license to host, copy, process and transmit the data, information and other materials transmitted to or through the Platform by Customer or Authorized Users (except for Diagnostic Data and Feedback (defined below)) (collectively, “Customer Data”) solely to provide and improve the Service. For the sake of clarity Customer Data may include but is not limited to the following data: Subscriber (as defined below) telephone numbers, Subscriber email addresses, Customer’s messages, and Subscribers’ messages.
e. Feedback. From time to time, Customer may make available to Attentive, directly or indirectly, feedback, analysis, suggestions and/or comments related to the Service (collectively, “Feedback”). Customer hereby grants to Attentive a perpetual and irrevocable right to use such Feedback to provide and improve the Service without any compensation or credit to Customer.
f. Suspension. Attentive reserves the right to suspend, terminate or limit Customer’s and/or Authorized Users’ access to the Service and restrict, disable or quarantine any of Customer Data if Attentive determines, in its reasonable discretion, that (i) the Service is being used by Customer, or its Authorized Users, in violation of this Agreement or Attentive’s content policy set forth at https://www.attentive.com/content-policy/; (ii) the Service is being used by Customer in an unauthorized or fraudulent manner; (iii) the use of the Service by Customer adversely affects Attentive’s equipment or its provision of the Service to others; or (iv) Attentive has not received any amount due under this Agreement within fifteen (15) days after it was due.
g. Training and Support. Attentive may provide commercially reasonable training and support in connection with the Service, in its sole discretion. Any such training or support may be available via email to cs@attentive.com. Attentive will respond to requests for training or support only from the Authorized Users.
3. Professional Services. Subject to the terms and conditions of this Agreement, Attentive will provide any Professional Services as directed by Customer and identified in any Order Form. Attentive may develop software or other works of authorship, trade secrets, inventions or other intellectual property in performing the Professional Services (collectively, “Attentive Works”). For the avoidance of doubt, Attentive Works shall not include any Customer Data. Subject to timely payment of the applicable Fees (defined in Section 5 (Fees) below), Attentive hereby grants to Customer a non-exclusive, non-transferable (except under Section 11(c) (Assignment) below), non-sublicensable, royalty-free and worldwide right and license during the Term only to use any portion of the Attentive Works that is incorporated into the Service solely as necessary to use the Service in accordance with this Agreement. No part of the Platform, Templates, or Professional Services shall be considered work-for-hire, and any work-for-hire shall be explicitly designated using the term “work-for-hire” within the applicable Order Form specific to such work-for-hire. Customer will reasonably cooperate with Attentive in the provision of Professional Services. Customer shall remain solely responsible for its use of the Service and reviewing and approving any final design to confirm it meets its design and accessibility needs. Attentive does not make final design or accessibility decisions with respect to Customer’s use of the Service.
4. Free Trial.
a. In General. Attentive may make the Service available to Customer for evaluation purposes free of charge until the earlier of (i) the end of the free trial period as stated on the Order Form; (ii) the start of any purchased access to the Service through an Order Form (which may include charges for messages exceeding the applicable free trial period limit); or (iii) termination by Attentive in Attentive’s sole discretion (the “Trial Period”).
b. No Warranty During Trial Period. Notwithstanding Section 8 (Representations and Warranties), during the Trial Period the Service is offered “as is,” AND ATTENTIVE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, AND ATTENTIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING.
c. No Indemnification During Trial Period. Notwithstanding Section 10 (Indemnification), during the Trial Period, Section 10(b) (Indemnification by Attentive) shall not apply.
5. Fees.
a. Fees. Customer will pay Attentive the fees set forth in the Order Form (“Fees”). All Fees will be due and payable upon receipt of the applicable invoice issued by Attentive. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) 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. All Fees shall be payable in USD unless agreed separately in an Order Form.
b. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the rights and benefits it receives under this Agreement. If Customer is compelled to make any deduction of Taxes, it will pay to Attentive such additional amounts as are necessary to ensure receipt by Attentive of the full amount that Attentive would have received but for the deduction. If Attentive has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5(b), then Attentive will invoice Customer and Customer will pay that amount unless Customer provides Attentive with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Attentive is solely responsible for Taxes assessable against Attentive based on its net income, property and employees.
6. Confidential Information.
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked in writing as “confidential” or by a similar designation or that otherwise should be considered confidential information based on the nature of the information and circumstances of disclosure. For clarity, Attentive’s Confidential Information also includes pricing, the non-public parts of the Service, its user interface, design and layout, and any related non-public specifications, documentation or technical information that Attentive provides to Customer and/or Authorized Users. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
b. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party may use Confidential Information of the Disclosing Party only to perform its obligations or exercise its rights under this Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under this Agreement and who are bound to terms as least as restrictive as those in this Agreement. Neither party will disclose the terms of this Agreement to any third party (other than its affiliates, legal counsel or accountants) without the other party’s prior written consent.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7. Term and Termination.
a. Term. This Agreement will commence on the date that Customer first enters into an Order Form and continue until all Order Forms have expired or are terminated according to their terms (the “Term”).
b. Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice if the other party is in material breach of this Agreement and the breaching party fails to remedy the breach within such thirty (30) day notice period.
c. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the licenses granted to Customer in Section 2(a) (License to Service) and Section 3 (Professional Services) will automatically terminate and all Fees owed pursuant to Section 5 (Fees) will become immediately due and payable. Any usage by Customer of the Service specified in an Order Form beyond the expiration or termination of such Order Form shall be (i) paid for by Customer at Attentive’s standard monthly fees for such Service and (ii) subject to the terms of this Agreement. Any such continued Service after expiration of an Order Form shall not affect Attentive’s right to discontinue or terminate the Service at any time post-expiration.
d. Survival. The provisions of Sections 2(b) (Restrictions), 2(c) (Attentive Ownership of Service), 2(d) (Customer Data), 2(e) (Feedback), 2(f) (Suspension), 4(b) (No Warranty During Trial Period), 4(c) (No Indemnification During Trial Period), 5 (Fees), 6 (Confidential Information), 7(c) (Effect of Termination), 7(d) (Survival), 8 (Representations and Warranties), 9 (Limitations on Liability), 10 (Indemnification), 11(Miscellaneous) and all defined terms used in those Sections will survive any expiration or termination of this Agreement.
8. Representations and Warranties.
a. Mutual. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of the party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
b. Attentive. Attentive represents and warrants that it will use commercially reasonable efforts to make the Service available at all times during the Term, except for planned downtime and any unavailability caused by force majeure circumstances (e.g., fires, floods, acts of God, acts of government, civil unrest, service provider failures or delays, denial of service attacks, cellular network provider problems or failures, or similar events).
c. Customer. Customer represents and warrants that: (i) it owns or otherwise has sufficient rights to the Customer Data to grant the license set forth in Section 2(d) (Customer Data); (ii) the posting and use of Customer Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity, and Customer will not upload any Customer Data to the Platform that contains any sensitive or special categories of information as defined in Data Protection Laws (defined below), including the CCPA and California Privacy Rights Act; (iii) the upload, posting or other submission of Customer Data to the Platform does not and will not result in a breach of contract between Customer and any third party; (iv) it will not knowingly collect personally identifiable information from children under thirteen (13) when using the Service; (v) when using the Service, including when using the Service to send text messages or email messages (collectively, “Messages”), Customer will, and will cause its Authorized Users to: (A) comply with and maintain appropriate records to demonstrate its compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, the Americans with Disabilities Act, provincial privacy legislation, Canada’s Anti-Spam Legislation (“CASL”), and all state, local, and foreign equivalents; all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices, and any other applicable foreign carrier requirements (collectively, “Applicable Message Requirements”); (B) ensure the content of all Messages complies with Applicable Message Requirements, including all applicable form, content and unsubscribe requirements; (C) send Messages only to individuals from whom Customer has obtained all necessary and legally required consent to do so in accordance with its obligations under Applicable Message Requirements (“Subscribers”); and (D) promptly notify Attentive of all requests made by Subscribers to stop receiving Messages from Customer; and (vi) any consumer contact information provided by Customer to Attentive has been collected in accordance with Applicable Message Requirements. Customer’s responsibilities as set forth in this Section and this Agreement will remain the sole responsibility and liability of Customer notwithstanding that Attentive may offer Templates, advice, guidance or suggestions relating to any of the matters that are Customer’s responsibility and notwithstanding that Attentive may be engaged to provide services related to such responsibilities of Customer.
d. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH UNDER THIS SECTION 8, ATTENTIVE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND ATTENTIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 8(d), (I) TEMPLATES ARE PROVIDED BY ATTENTIVE FOR CONVENIENCE ONLY AND CUSTOMER SHOULD CONFER WITH ITS OWN COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES OR TO MEET CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAWS, INCLUDING APPLICABLE MESSAGE REQUIREMENTS; (II) CUSTOMER MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE OR OTHER CONTENT IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE OR CONTENT SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS; AND (III) ATTENTIVE IS A CONDUIT FOR MESSAGES SENT OVER THE PLATFORM BY CUSTOMER AND HAS NO RESPONSIBILITY FOR SUCH MESSAGES OR MESSAGE CONTENT.
9. Limitations on Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 10 (INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES), (I) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES THAT CUSTOMER HAS PAID TO ATTENTIVE DURING THE TERM; AND (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. This Section 9 will not apply to any actual or alleged infringement by Customer or any Authorized User of Attentive’s intellectual property or other proprietary rights.
10. Indemnification.
a. Customer. If a third party asserts a claim or any proceeding, investigation or inquiry is initiated by a regulator (each, a “Third-Party Claim”) against Attentive, its affiliates or any of their respective affiliates, officers, employees or contractors (each, a “Attentive Released Party”) arising out of or in connection with any (i) use of the Service by Customer or any Authorized User in violation of this Agreement, Attentive’s content policy set forth at https://www.attentive.com/content-policy/ or the terms set forth at https://www.attentive.com/terms; (ii) breach by Customer of Customer’s representations or warranties contained herein, including Section 8(c) (Representations and Warranties of Customer); (iii) Customer Data uploaded or transmitted to the Service or generated by the Service by Customer or an Authorized User; or (iv) allegation that Customer or an Authorized User used the Service, or otherwise caused Attentive, to send Messages in violation of any applicable law, rule, regulation or industry best practice including Applicable Message Requirements; then, in each case, Customer will indemnify and defend each Attentive Released Party from the Third-Party Claim and hold such parties harmless from all penalties, losses, liabilities, costs and expenses, including, but not limited to, reasonable attorneys’ fees, consultants’ fees, court costs, and damages finally awarded or costs of settlements entered into with respect to the Third-Party Claim. This Section 10(a) states Customer’s entire and sole liability for Third-Party Claims.
b. Attentive. If a Third-Party Claim is asserted against Customer or any of its affiliates, officers, employees or contractors (each, a “Customer Released Party”) alleging that the Platform infringes such third party’s patent rights (“Infringement Claim”), then Attentive will indemnify and defend the Customer Released Party from the Infringement Claim and hold such party harmless from any damages finally awarded or costs of settlements entered into with respect to the Infringement Claim. In the event of an Infringement Claim, Attentive, at its sole option and expense, may: (i) procure for Customer the right to continue using the Platform or infringing part thereof; (ii) modify or amend the Platform or infringing part thereof; (iii) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (iv) if the foregoing are not commercially practicable, terminate this Agreement and repay to Customer a pro-rata portion of the Fees. Notwithstanding the foregoing sentences of this Section 10(b), Attentive will have no liability for an Infringement Claim if the actual or alleged infringement results from (A) any breach of this Agreement by Customer or any Authorized User; (B) any modification, alteration or addition made to the Platform by Customer or any Authorized User, including any combination of the Platform with software not provided by Attentive; or (C) any failure by Customer or any Authorized User to use any subsequent versions, updates or upgrades made available by Attentive. This Section 10(b) states Attentive’s entire and sole liability with respect to Infringement Claims.
c. Procedures. The party seeking indemnity under this Section 10 (“Indemnified Party”) will provide the other party (“Indemnifying Party”) with prompt written notice of any claim for which the Indemnified Party seeks an indemnity, provided that failure to provide such notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was materially prejudiced by such failure. The Indemnifying Party shall, at its own expense, defend the Indemnified Party using legal counsel reasonably acceptable to the Indemnified Party. The Indemnified Party will reasonably cooperate in the defense of any such claim, at the Indemnifying Party’s sole expense. The Indemnifying Party will have the sole authority to settle a claim, provided that it may not settle any claim against the Indemnified Party without the Indemnified Party’s prior express written consent, which may not be unreasonably withheld, conditioned or delayed, unless such settlement consists solely of monetary damages for which the Indemnifying Party is responsible hereunder. The Indemnified Party may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if the Indemnified Party reasonably determines that the Indemnifying Party is unwilling or unable to defend the Indemnified Party’s interests, then the Indemnified Party may assume the defense against any claims at the Indemnifying Party’s sole expense.
11. Miscellaneous.
a. Third-Party Interactions. Customer’s use of any third-party products, packages or services that are not provided by Attentive which link to the Service, or which are enabled in conjunction with the Service (“Third-Party Interactions”) shall be at Customer’s choice and sole discretion. To the extent Customer decides to use Third-Party Interactions, Customer’s access and use of such Third-Party Interactions shall be governed solely by the terms and conditions of such Third-Party Interactions as between Customer and the third party. In the event Customer enables, installs, connects, or provides access to any Third-Party Interactions for use with the Service, Customer (i) permits the transmission of Customer Data to such Third-Party Interactions at Customer’s direction; (ii) permits such Third-Party Interactions to access the Customer Data at Customer’s direction; and (iii) will provide notice to Attentive of any transmission of Customer Data and provide notice to Attentive of the identity of such third party (unless notice is provided in connection with an API call). Attentive does not license, support, control, endorse or otherwise make any representations or warranties regarding any Third-Party Interactions, notwithstanding that Attentive may have identified such Third-Party Interaction that Customer subsequently decided to use, and notwithstanding that Customer has directed Attentive to implement or configure such Third-Party Interactions on Customer’s behalf.
b. Attentive AITM. Attentive may make available to Customer certain artificial intelligence tools in connection with Customer’s use of the Platform (the “Attentive AI Tools”). The Attentive AI Tools leverage third party large language models and artificial intelligence algorithms and platforms (“Third-Party Services”) to generate suggestions (“Output”) in response to the Customer’s prompts (“Prompts”). Such Third-Party Services are not under the control of Attentive. Attentive is not responsible for any Third-Party Services or Output generated thereby. Customer uses such Third-Party Services and Output at its own risk. Customer is solely responsible for the Prompts, its Outputs and its use thereof. Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgment as to its suitability for use. As between the parties, each of the Prompts and Output are considered “Customer Data” as defined in Section 2(d) and “Confidential Information” as defined in Section 6(a), provided that: (i) such Prompts may be provided to Third-Party Services in order for Customer to access the Attentive AI tools; and (ii) such Third-Party Services may retain certain rights to use the aggregated, anonymized data, and de-identified Prompts and Output, including to further train their algorithmic models. Attentive does not make any representations or warranties with respect to Third-Party Services or any Output provided in connection therewith. The Attentive AI Tools are offered without warranty of any kind, and may be modified or terminated at Attentive’s sole discretion. Attentive neither represents nor warrants that Customer is the legal owner of the Output; that the Output is protectable by any intellectual property rights; or that the Output will not incorporate, infringe or misappropriate the intellectual property or proprietary rights of any third party.
c. Assignment. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Neither party may assign this Agreement or any rights under it, in whole or in part, without the other party’s prior written consent; provided that either party may assign this Agreement or any rights under it without prior written consent to a successor in connection with a merger, acquisition, reorganization, consolidation, or sale of all or substantially all of its assets or the business to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be void.
d. Export Regulations. Without limiting Section 2(b)(vi) (Restrictions), Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Customer covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Attentive under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.
f. Governing Law, Jurisdiction, and Injunctive Relief. This Agreement will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the parties agree to waive all rights to challenge the foregoing. Customer agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Attentive, entitling Attentive to seek injunctive relief in addition to all legal remedies.
g. Entire Agreement; Amendments; Waivers. This Agreement, including any related Order Form(s), embodies the entire agreement between the parties with respect to the subject matter set forth herein and supersedes any previous, or contemporaneous communications, whether oral or written, express or implied. The terms of any Customer-generated purchase order or any terms presented in connection with any vendor management tool (e.g., vendor payment portal) will be void and shall have no legal effect. Attentive may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Attentive written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer provides notice of non-renewal). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be modified or amended in any other way except by a writing signed by both parties. All waivers made under this Agreement must be made in writing by the party making the waiver.
h. Notices. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed; or (ii) sent via electronic mail to legal@attentive.com in the case of Attentive and to the address or email provided in the Order Form, in the case of Customer. Either party may change its address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, or on the same day an electronic mail is sent to the recipient.
i. Marketing. Attentive may use Customer’s name and logo in both print and electronic media to identify Customer as an Attentive customer. Additionally, Attentive may use Customer’s Messages (in whole or in part) including but not limited to on the Service or Attentive’s website as examples of mobile messaging campaigns. If Customer in its reasonable discretion determines that Attentive’s use under this section is derogatory, defamatory or detrimental to Customer’s business or reputation, then Customer may revoke the rights granted to Attentive in this section upon providing written notice to Attentive.
12. Data Protection.
a. Personal Information. To the extent Customer Data includes Personal Information (defined below), and unless otherwise agreed to, Attentive shall retain, use, and disclose Personal Information for the sole purposes specified in this Agreement. As used herein, “Personal Information” means “personal information,” “personally identifiable information,” “personal data,” or other such similar terms as used by laws and regulations that are applicable to the processing of Personal Information under the Agreement (“Data Protection Laws”), including but not limited to the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 – 1798.199, 2018) (“CCPA”). For the avoidance of doubt, Attentive is a “service provider” as that term is defined in the CCPA, and any exchange of Personal Information is incidental to the performance of the Agreement and not for monetary or other valuable consideration, and Attentive shall not disclose, transfer or otherwise make available Personal Information to any third party in exchange for monetary or other valuable consideration. Attentive hereby certifies that it understands and shall comply with the restrictions set forth in this Agreement.
b. Data Subject Requests. Attentive will reasonably assist Customer with any data subject requests, such as requests to access or delete Personal Information. In the event Attentive receives any requests or complaints from data subjects that identify Customer, Attentive will promptly inform and reasonably assist Customer with developing a response (but Attentive will not itself respond other than to confirm receipt of the request or to direct the data subject to Customer, except upon reasonable instructions from Customer).
c. Security. Attentive shall maintain commercially reasonable administrative, technical and physical safeguards that are (i) appropriate to the nature of Personal Information that it processes on behalf of Customer and (ii) designed to protect the security, confidentiality and integrity of Customer Data. In the event (a) of any unauthorized acquisition, alteration, or disclosure of Customer’s Personal Information that requires notification to an individual, government or regulatory body, or law enforcement authority under Data Protection Laws, or (b) Attentive makes a determination that it can no longer meet its obligations under Data Protection Laws, Attentive shall notify Customer promptly and without undue delay.
d. Sub-Processors. Customer hereby authorizes Attentive to engage third-party entities to process (as that term is defined by Data Protection Laws) Personal Information on behalf of and as specifically directed by Attentive pursuant to a written contract that includes obligations that are at least as protective as those set out in this Section 12 and as required by Data Protection Laws.
e. Privacy Notice. Customer agrees it will provide and abide by an appropriate consumer-facing privacy policy and any other privacy notice as required to comply with Data Protection Laws. Customer’s privacy policy shall provide notice of the processing of Personal Information as contemplated by the Service, including, if applicable, the use of cookies and other similar technologies to collect Personal Information from individual consumers. Customer will further ensure that each applicable consumer is provided with clear and comprehensive information about, and authorizes and/or consents to, the storing and accessing of cookies or other information on the individual’s device where such activity occurs in connection with the Service and to the extent required by Data Protection Laws.
f. Additional Terms. To the extent the Regulation 2016/679 (“EU GDPR”) or the Data Protection Act 2018 (“UK GDPR”) apply to the collection, use, or disclosure of Personal Information, the parties shall comply with the requirements set forth in a data processing addendum which shall be specifically incorporated by reference in the respective Order Form.