TERMS OF SERVICE FOR CLOUD SERVICES
(CLICK-TO ACCEPT VERSION OF DAILYBOT¬ģ CLOUD SERVICES AGREEMENT)
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PLEASE READ THESE TERMS OF SERVICE CAREFULLY. 

BY CLICKING ‚ÄúACCEPTED AND AGREED TO‚ÄĚ AND OPENING AN ONLINE ACCOUNT WITH DAILYBOT, INC., CUSTOMER AGREES TO THESE TERMS AND CONDITIONS

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These ‚Äúclick-to-accept‚ÄĚ Terms of Service constitute an agreement (this ‚ÄúAgreement‚ÄĚ) for the provision of Cloud Services (as defined below) by and between DailyBot, Inc., a Delaware corporation (‚ÄúDailyBot‚ÄĚ), and the corporation, LLC, partnership, sole proprietorship, other business entity¬† or individual (‚ÄúCustomer‚ÄĚ) opening an online account with DailyBot for access to the Platform (as defined below), as specified in the registration information provided by Customer to DailyBot in the online registration form. This Agreement is effective as of the date Customer clicks ‚ÄúAccepted and Agreed To‚ÄĚ and submits a completed Customer Order (as defined below in Section 1.6) to DailyBot (the ‚ÄúEffective Date‚ÄĚ). Customer‚Äôs use of and DailyBot‚Äôs provision of access to the Platform are governed by this Agreement.¬† This Agreement does not apply to any subscription agreements for Cloud Services entered into by DailyBot and a customer on the basis of a fully-executed stand-alone Cloud Service Agreement (‚ÄúCSA‚ÄĚ) separately from the click-through process through the Website.¬†¬†

CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.  

Customer further acknowledges that this Agreement does not have to be signed in order to be binding.  Customer has indicated its assent to the terms of the Agreement by clicking on the "Accepted and Agreed to" (or similar button) that is presented to Customer at the time of its opening an online account with DailyBot or executing a Customer Order.

1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.

1.1. ‚ÄúAggregate Data‚ÄĚ has the meaning ascribed to it in Section 4.7 hereof.

1.2. ‚ÄúAUP‚ÄĚ means DailyBot‚Äôs acceptable use policy, currently posted at
https://www.dailybot.com/legal/acceptable-use-policy.

1.3. ‚ÄúCloud Services‚ÄĚ means such software as a service (SAAS) chatbot, collaboration and productivity tools, web, desktop and mobile applications as DailyBot may provide from time to time via the Platform on a subscription basis under the brand name of DailyBot ¬ģ.

1.4. ‚ÄúConfidential Information‚ÄĚ has the meaning ascribed to it in Section 7.

1.5. ‚ÄúCustomer‚Äôs Business Data‚ÄĚ means data in electronic form input or collected through the Platform by or from Customer, including without limitation by Customer‚Äôs Users.

1.6. ‚ÄúCustomer Order‚ÄĚ means an electronic order for access to the Platform on a subscription basis, substantially in the form of an online form available through the Website and completed and submitted by Customer as part of the registration process on the Website for DailyBot‚Äôs acceptance.¬† DailyBot will provide a copy of the accepted Customer Order via email to Customer promptly following the submission of the Customer Order by Customer.

1.7. ‚ÄúDocumentation‚ÄĚ means DailyBot's user guide published on the online self-service support service on the Website for the use of the Platform.

1.8. ‚ÄúExcluded Data‚ÄĚ has the meaning ascribed to it in Section 4.5 hereof.¬†

1.9. ‚ÄúFeedback‚ÄĚ has the meaning ascribed to it in Section 6.2 hereof.

1.10. ‚ÄúPrivacy Policy‚ÄĚ means DailyBot‚Äôs privacy policy, currently posted at https://www.dailybot.com/legal/privacy-policy.

1.11. ‚ÄúPlatform‚ÄĚ means DailyBot‚Äôs proprietary online platform, to be accessed through the Website, chatbots, and/or mobile applications, which is designed for providing the Cloud Services.

1.12. ‚ÄúPlatform Fees‚ÄĚ has the meaning ascribed to it in Section 3.1 hereof.¬†

1.13. ‚ÄúTerm‚ÄĚ is defined in Section 11.1 below.

1.14. ‚ÄúUser‚ÄĚ means any individual, including Customer-nominated administrator who will have special administrator-level access privileges to Customer‚Äôs account, who uses the Platform on Customer‚Äôs behalf or through Customer‚Äôs account or passwords, whether authorized or not. Customer may authorize such number of its employees and independent contractors to act as Users under this Agreement as the Customer Order may permit but will remain responsible for each User‚Äôs compliance with this Agreement, including without limitation the AUP.¬†

1.15. ‚ÄúWebsite‚ÄĚ means the website, together with all audio-visual, graphic, text and other content, owned and operated by DailyBot at www.dailybot.com, app.dailybot.com, api.dailybot.com, and other subdomains.

2. THE PLATFORM. 

2.1. Use of the Platform. DailyBot may provide the Platform to Users on the following basis (each of which may be discontinued by DailyBot without advance notice): (a) a free subscription to the feature and function-limited use of the Platform, (b) free limited-time evaluation of the Platform as set forth in the Customer Order or (c) paid-for full-feature subscription on the terms of the Customer Order.  DailyBot may at its sole discretion offer a free subscription or a limited evaluation of the Platform, as applicable, which shall be subject to all of the provisions of this Agreement save for the payment of Platform Fees, through a Customer Order which sets forth the terms of such free subscription or evaluation. During the Term and provided that this Agreement has not been terminated by either party, and in consideration of the payment of the Platform Fees (other than with respect to those Customers who subscribe on the basis of a free subscription or evaluation), Customer may access and use the Platform pursuant and subject to: (a) the terms of any outstanding Customer Order, including such features and functions as the Customer Order provides for and any limitations on the number of Users, data volume and capacity as the Customer Order imposes; and (b) AUP and DailyBot’s other policies posted on its Website, as such policies may be updated from time to time.

2.2. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Platform.

2.3. Platform Revisions. DailyBot may revise Platform features and functions at any time, including without limitation by removing such features and functions. If any such revision to the Platform materially reduces features or functionality provided pursuant to a Customer Order, Customer may within 30 days of notice of the revision terminate by written notice to DailyBot such Customer Order, without cause, or terminate this Agreement without cause if such Customer Order is the only one outstanding. 

3. FEES. 

3.1. Fees.¬† Other than with respect to those Customers whose Customer Orders provide for a free subscription or evaluation, Customer shall pay DailyBot the Platform Fees for the access to and use of the Platform (‚ÄúPlatform Fees‚ÄĚ) on a subscription basis as specified in the Customer Order for the applicable level of access to the Platform from time to time during each Term.¬†¬†

3.2. Payment of Fees.¬† Unless a Customer Order provides for invoicing or another payment method, Customer authorizes DailyBot to charge an amount equal to the amount of the Platform Fees set forth in the Customer Order (on such dates as the Customer Order provides), and any additional amounts as permitted by this Agreement, to the credit card and/or bank account specified in the Customer Order in advance of provision of services to Customer by means of automatic debit or credit card charge or through the Automated Clearing House (‚ÄúACH‚ÄĚ) transfers charged to the Customer‚Äôs bank account for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account charge or ACH authorization in effect with sufficient credit limit or cash balance to enable DailyBot to charge the Platform Fees every month, year or other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. DailyBot will not be required to refund the Platform Fees under any circumstances.

3.3. Taxes. All Platform Fees are exclusive of, and Customer is solely responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of DailyBot. DailyBot may add any such taxes to the applicable Platform Fees.

4. CUSTOMER’S BUSINESS DATA & PRIVACY. 

4.1. Use of Customer’s Business Data. Unless it receives Customer’s prior written consent, DailyBot: (a) shall not access, process, or otherwise use Customer’s Business Data other than as necessary to operate and facilitate the Platform, to provide Cloud Services to Customer and to improve customer experience on the Platform; and (b) shall not intentionally grant any third party access to Customer’s Business Data, including without limitation DailyBot’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement or confidentiality duties. Notwithstanding the foregoing, DailyBot may disclose Customer’s Business Data as required by applicable law or by proper legal or governmental authority. DailyBot shall give Customer prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.2. Privacy Policy. The Privacy Policy applies only to the Platform and does not apply to any third party website or service linked to the Platform or recommended or referred to through the Platform or by DailyBot’s staff.

4.3. Data Accuracy. DailyBot shall have no responsibility or liability for the accuracy of data uploaded to the Platform by Customer, including without limitation Customer’s Business Data and any other data uploaded by Users.

4.4. Data Deletion. Customer hereby acknowledges that DailyBot does not store all Customer’s Business Data on the Platform and that certain types of Customer Data may be automatically erased.  Customer may request deletion of Customer Business Data which is stored on the Platform at any time or use the applicable functionality of the Platform to do so upon termination of this Agreement.

4.5. Excluded Data. Customer represents and warrants that Customer‚Äôs Business Data does not and will not include, and Customer has not and shall not upload or transmit to DailyBot's computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer‚Äôs internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm‚ÄďLeach‚ÄďBliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), etc. (the "Excluded Data Laws")(such Customer‚Äôs Business Data collectively, ‚ÄúExcluded Data‚ÄĚ). CUSTOMER RECOGNIZES AND AGREES THAT: (a) DAILYBOT HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) DAILYBOT‚ÄôS WEBSITES, INCLUDING THE PLATFORM, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

4.6. Ownership and Control of Customer’s Business Data.  DailyBot does not claim ownership of any Customer’s Business Data that is transmitted, created, or processed by or through any User or otherwise by the Customer. DailyBot does not control, verify, or endorse the Customer’s Business Data in any way.

4.7. Aggregate and Anonymized Data. Notwithstanding the provisions above of this Article 4, DailyBot may use Aggregate Data to improve DailyBot‚Äôs products and services, including without limitation the Cloud Services. (‚ÄúAggregate Data‚ÄĚ refers to Customer‚Äôs Business Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers as well as any and all performance, Platform or other statistical data derived from the operation of the Platform by DailyBot).

5. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS.

5.1. Acceptable Use. Customer shall, and use its reasonable efforts to cause all Users, to comply with the AUP. Customer shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s affiliates, to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation a breach of the AUP by Users, DailyBot may suspend or terminate Customer’s access to the Platform without advanced notice, in addition to such other remedies as DailyBot may have. Neither this Agreement nor the AUP requires that DailyBot take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but DailyBot is free to take any such action it sees fit.

5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer shall notify DailyBot immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.

5.3. Compliance with Laws. In its use of the Platform, Customer shall, and shall cause Users to, comply with all applicable laws and regulations, including without limitation laws governing the protection of personally identifiable information, data security, privacy, publicity, defamation, intellectual property and all other laws applicable to Customer’s Business Data.

5.4. Users and Platform Access. Customer will designate one or more individuals for the purpose of acting as administrator of Customer’s account with DailyBot. Customer is responsible and liable for: (a) all Users’ use of the Platform, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer’s account, whether authorized or unauthorized.

6. IP AND FEEDBACK. 

6.1. IP Rights to the Platform. DailyBot retains all right, title, and interest in and to the Platform, including without limitation all software, system software and applications used to provide the Platform, including any source code, object code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the Platform. This Agreement is an agreement for services and does not grant Customer or any Users any intellectual property license or rights in or to the Platform or any of its components. Customer understands and agrees that the Platform and its components are protected by copyright, trademark, trade secret and other laws.

6.2. Feedback. DailyBot has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to DailyBot, and nothing in this Agreement or in the parties‚Äô dealings arising out of or related to this Agreement will restrict DailyBot‚Äôs right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (‚ÄúFeedback‚ÄĚ refers to any suggestion or idea for improving or otherwise modifying any of DailyBot‚Äôs products or services.)

7.¬†CONFIDENTIAL INFORMATION. ‚ÄúConfidential Information‚ÄĚ refers to the following items DailyBot discloses to Customer: (a) any document DailyBot marks ‚ÄúConfidential‚ÄĚ; (b) any information DailyBot orally designates as ‚ÄúConfidential‚ÄĚ at the time of disclosure, provided DailyBot confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, Statements of Work and any communications between DailyBot and Customer in relation to this Agreement, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by DailyBot, whether or not marked or designated ‚ÄúConfidential.‚ÄĚ Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer‚Äôs possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer‚Äôs improper action or inaction; or (iv) is approved for release in writing by Customer.¬†

7.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than the use of the Platform for its ordinary internal business purposes (the ‚ÄúPurpose‚ÄĚ). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without DailyBot‚Äôs prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify DailyBot of any misuse or misappropriation of Confidential Information that comes to Customer‚Äôs attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give DailyBot prompt notice of any such legal or governmental demand and reasonably cooperate with DailyBot in any effort to seek a protective order or otherwise to contest such required disclosure, at DailyBot‚Äôs expense.

7.2. Injunction. Customer agrees that breach of this Article 7 would cause DailyBot irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, DailyBot will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3. Termination and Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to DailyBot or certify, in writing, the destruction thereof.

7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. DailyBot will retain all right, title, and interest in and to all Confidential Information.

8. REPRESENTATIONS & WARRANTIES. 

8.1. From DailyBot. DailyBot represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. DailyBot’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by DailyBot. In the event of a breach of the warranty in this Section 8.1, DailyBot, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing; or (c) terminate the infringing features of the Cloud Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states DailyBot’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Platform.

8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; (c) it will and will cause all Users to use the Platform and the Cloud Services in compliance with all applicable laws and regulations; and (d) it is a corporation, limited liability company, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3. Warranty Disclaimers. Except as provided in Section 8.1 above, CUSTOMER ACCEPTS THE PLATFORM ‚ÄúAS IS‚ÄĚ AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) DAILYBOT HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) DAILYBOT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (C) DAILYBOT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER‚ÄôS BUSINESS DATA WILL REMAIN PRIVATE OR SECURE.¬†

9.¬†INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless DailyBot and each of DailyBot Associates (as defined below) against any ‚ÄúIndemnified Claim,‚ÄĚ meaning any third party claim, suit, or proceeding arising out of or related to Customer's and/or User‚Äôs alleged or actual use of, misuse of, or failure to use the Platform, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer‚Äôs own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer‚Äôs Business Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Customer‚Äôs account, including without limitation by Customer‚Äôs Business Data; and (d) claims that use of the Platform through Customer‚Äôs account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to DailyBot‚Äôs negligence. Customer‚Äôs obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer‚Äôs expense and payment of judgments. DailyBot will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (‚ÄúDailyBot Associates‚ÄĚ are DailyBot‚Äôs officers, directors, shareholder, parents, subsidiaries, affiliates, agents, successors, and assigns.)

10. LIMITATION OF LIABILITY.

10.1. Dollar Cap. DAILYBOT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE PLATFORM FEES ACTUALLY PAID BY CUSTOMER TO DAILYBOT IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO DAILYBOT WITH RESPECT TO DAILYBOT’S BREACH OF DAILYBOT’S OBLIGATIONS UNDER THIS AGREEMENT.

10.2. Exclusion of Consequential Damages. IN NO EVENT WILL DAILYBOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF DAILYBOT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, DailyBot’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, DailyBot’s liability limits and other rights set forth in this Article 10 apply likewise to DailyBot’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11. TERM AND TERMINATION.

11.1. Term. The term of this Agreement (the ‚ÄúTerm‚ÄĚ) shall commence on the Effective Date and continue for the initial term set forth in the Customer Order. Thereafter, other than with respect to those Customers who subscribe on the basis of a free subscription, the Term will renew for successive terms equal to the initial term specified in the Customer Order, unless either party refuses such renewal by written notice to the other party 30 or more days before the renewal date.

11.2. Termination for Cause. Either party may terminate this Agreement or any Customer Order if the other party: (i) fails to cure any material breach (including, without limitation, Customer's failure to pay the Platform Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).

11.3. Effects of Termination. Upon termination of this Agreement, DailyBot shall discontinue Customer’s access to the Platform and Customer shall cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay the Fees (unless the termination is by Customer for cause); (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability) and 12 (Publicity); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

12. PUBLICITY. In further consideration of the rights granted hereunder to Customer, Customer agrees to permit DailyBot to use Customer's name and trademarks and service marks to identify Customer as a DailyBot customer on the Website, in DailyBot’s marketing materials and in other sales and marketing activities, provided that Customer does not notify DailyBot in writing of its revocation of such permission. Customer agrees to cooperate with DailyBot in reasonable publicity efforts involving the Platform, such as, for example, media releases and marketing materials in accordance with DailyBot's reasonable request.

13. MISCELLANEOUS.

13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no DailyBot employee or contractor will be an employee or contractor of Customer.

13.2. Notices. DailyBot may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to DailyBot, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail to DailyBot’s office address listed in the Customer Order (return receipt requested and postage prepaid) or delivered by a reputable courier or express service with a copy (not to be deemed notice) given by email to support@dailybot.com.

13.3. Force Majeure. No delay, failure, or default, other than a failure to pay Platform Fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

13.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without DailyBot’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

13.7. Choice of Law and Venue. This Agreement will be governed solely by the internal laws of the State of New York, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the New York County, New York and hereby waive a trial by jury.

13.8. Conflicts. In the event of any conflict between this Agreement and any DailyBot policy posted on the Website, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

13.9. Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

13.10. Technology Export. Customer shall not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by DailyBot or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

13.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

13.12. Amendment.¬† DailyBot may amend this Agreement from time to time by posting an amended version of the Terms of Service for Cloud Services at the Website and, solely with respect to Customers, sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the ‚ÄúProposed Amendment Date‚ÄĚ) unless Customer first gives DailyBot written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer‚Äôs next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Section 11.2). Customer‚Äôs continued use of the Cloud Services following the effective date of an amendment will confirm Customer‚Äôs consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 13.12, DailyBot may revise the Privacy Policy and AUP at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.

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Last Revised: March 11, 2022


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