IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE"SERVICES") OF EMPWR AI, Inc. (“EMPWR.AI”) AND ITS SUBSIDIARIES (COLLECTIVELY, THE “EMPWR.AI” OR “WE” OR “US” OR “OUR”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE(THE “TERMS”), WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
THESE TERMS CONSTITUTE A CONTRACT BETWEEN YOU AND EMPWR.AI AND GOVERN USE OF AND ACCESS TO THE SERVICE AND WEBSITE BY YOU, USERS, AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.
THE EMPWR.AI SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
By accepting these Terms, or by accessing or using the Service or Website, or authorizing or permitting any User or End-User to access or use the Service,You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Empwr.ai thatYou have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
This Master Subscription Agreement (“Agreement”) is entered into by Empwr.ai, Inc., a Delaware corporation with its principal office at 1001 Woodward Ave, Suite 500, Detroit, MI 48226 (“Empwr.ai”), and Subscriber.
The parties hereby agree to the following:
1. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE
1.1 Access and Services Use. Empwr.ai grants Subscriber access to use the Services during the Subscription Term. Empwr.ai will provide Services in accordance with this Agreement and Subscriber may use the Services in accordance with this Agreement.
1.2 Account. Subscriber must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and any use of its Account. Subscriber agrees that each User will be identified by a unique username and password (“User Login”), and that a User Login may only be used by one (1) individual. Subscriber and its Users will not share a User Login among multiple individuals. Subscriber and its Users are responsible for maintaining the confidentiality of all User Login information for its Account.
1.3 Requirements for Use of Services. Subscriber must have a high-speed Internet connection which is required for proper transmission and use of the Service. Subscriber is responsible for procuring, maintaining and/or monitoring the network connections that connect Subscriber’s network to the Service.
2. PAYMENT TERMS; PLAN MODIFICATIONS; TAXES
2.1 Payments; Delinquent Payments; Suspension. Unless otherwise indicated on a Order Form/Invoice referencing this Agreement, all charges associated with access to and use of the Service (“Subscription Charges”) are due in full upon commencement of the Subscription Term. If Subscriber fails to pay the Subscription Charges or charges for other services indicated on any Order Form/Invoice referencing these Terms within five (5) days of notice to Subscriber that payment is due or delinquent, or if payment information is not updated upon Empwr.ai’s request, Empwr.ai may suspend or terminate access to, and use of the Service by Subscriber and End Users, in addition to any other remedies related to Empwr.ai’s collection efforts.
2.2 Subscription Upgrade. If Subscriber chooses to upgrade the Service Plan or increase the number of Users during the Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of the then-current Subscription Term, charged to Subscriber’s Account and due and payable upon the effective date of the updated Order Form/Invoice reflecting such Subscription Upgrade. In any future Subscription Term, the Subscription Charges will reflect any such Subscription Upgrades.
2.3 Subscription Downgrade. If Subscriber chooses to downgrade the Service Plan or reduce the number of Users during the Subscription Term, Subscriber will not provide refunds or credits for Subscription Charges, nor will other fees or payments be provided to Subscriber if the Service Plan is downgraded. Downgrading the Service Plan may cause loss of content, features, or capacity of the Service as available to Subscriber and Empwr.ai does not accept any liability for such loss.
2.4 Credit Card Payments. If Subscriber pays by credit card, the Service provides an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Empwr.ai, or they may obtain a receipt from within the Service to track the subscription status. Empwr.ai uses a third-party intermediary to manage its credit card processing and this intermediary is not permitted to store, retain or use billing information except to process Subscriber’s information for the use of the Service.
2.5 Taxes. Subscriber is responsible for any Taxes, and will pay Empwr.ai for the Services without any reduction for Taxes. If Empwr.ai is obligated to collect or pay any Taxes, the Taxes will be invoiced to Subscriber and Subscriber will pay such Taxes to Empwr.ai.
3. SUBSCRIBER’S OBLIGATIONS
3.1 Compliance. Subscriber will (a) ensure that Subscriber and its End Users use of the Services complies with this Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, (c) promptly notify Empwr.ai or any unauthorized use of, or access to, the Services, Account, or Subscriber’s password of which Subscriber becomes aware, and (d) comply with all applicable laws and regulations.
3.2 Privacy. Subscriber is responsible for any consents and notices required to permit (a) Subscriber’s and its End Users’ use and receipt of the Services and (b) Services Provider’s accessing, storing and processing of data provided by Subscriber (including Subscriber Data, if applicable) under this Agreement.
3.3 Restrictions. Subscriber is responsible for compliance with these terms by Subscriber’s End Users. Subscriber will not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized End Users in furtherance of Subscriber’s internal business purposes as expressly permitted by this Agreement, (b) use the Service to Process Personal Data on behalf of any third party other than End Users, (c) copy, modify, or create derivitive work of the Servicess, (d) falsely imply any sponsorship or association with Empwr.ai, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights, (f) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights, (g) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components, (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service, (i) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory, (j) use the Service to store, transmit, or process any “protected health information” as that term is defined in 45 C.F.R. 160.103 except as permitted by an excecuted HIPAA BAA, (k) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State, (l) in a manner that breaches, or causes the breach of, Export Control Laws; (m) allow a user under the age of eighteen (18) to use the Service, (n) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”), (o) access the Service if Subscriber is a direct competitor of Empwr.ai, except with Empwr.ai’s express written consent, (p) for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, and (q) use the Service in violation of this Agreement.
3.4. Suspension. Empwr.ai may immediately Suspend all or part of Subscriber's use of the Services if (a) Empwr.ai reasonably believes Suspension is needed to protect the Services, Empwr.ai’s infrastructure supporting the Services, or any other subscriber of the Services (or their end users), (b) there is suspected unauthorized third-party access to the Services, (c) Empwr.ai reasonably believes that immediate Suspension is required to comply with any applicable law or, (d) Subscriber is in breach of Section 3.3 (Restrictions) of the Agreement. Empwr.ai will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Subscriber’s request, Empwr.ai will, unless prohibited by applicable law, notify Subscriber of the basis for the Suspension as soon as is reasonably possible.
4. UPDATES AND BETA SERVICES
4.1 Updates to the Services. Empwr.ai may modify the features and functionality of the Service and make commercially reasonable updates to the Services during the Subscription Term.
4.2 Updates To this Agreement and Pricing. Empwr.ai may make updates to this Agreement and pricing. Unless otherwise noted by Empwr.ai, material updates to this Agreement or pricing will become effective thirty (30) days after they are posted. Notwithstanding the preceding sentence, to the extent any updates relate to new functionality or are required to comply with applicable law, they will be effective immediately.
4.3 Beta Services. From time to time, Empwr.ai may make Beta Services available at no charge and Subscriber may choose to try such Beta Services at its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented at the time. Beta Services are not considered Services under this Agreement; however, all restrictions, reservation of rights and Subscriber obligations concerning the Service, and use of any third party services shall apply equally to the use of Beta Services. Beta Services may be discontinued at any time in Empwr.ai’s sole discretion and may never be made generally available. Empwr.ai has no liability for any harm or damage arising out of or in connection with a Beta Service.
5. CONFIDENTIALITY; DATA PRIVACY AND SECURITY
5.1 Confidentiality Obligations. The recipient will only use the disclosing party’s Confidential Information to exercise the recipient’s rights and fulfill its obligations under this Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information.The recipient may disclose Confidential Information only to it and its Affiliates' employees, agents, subcontractors, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
5.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process, (ii) obstruct a governmental investigation, or (iii) lead to death or serious physical harm to an individual.
5.3 Protection of Subscriber Data and Data Privacy. Empwr.ai will act as a Data Processor and will only Process Subscriber Data and Subscriber Personal Data to provide the Services and in accordance with Subscriber’s written instructions. Empwr.ai will not access, use or process Subscriber Data or Subscriber Personal Data for any other purpose. Empwr.ai maintains commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality, and integrity of Subscriber Data and Subscriber Personal Data. Subscriber will act as the Data Controller.
5.4 Subprocessors. Empwr.ai uses the services of third parties that assist in providing the Service. Such third party provider will only be given access to Process Subscriber’s Account and Subscriber Data and/or Subscriber Personal Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5.1, and (b) their agreement to comply with the applicable data processing and security protections for the Subscriber Data and/or Subscriber Personal Data.
6. INTELLECTUAL PROPERTY RIGHTS; FEEDBACK
6.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content, any of the other’s intellectual property or that of any third party. Subscriber retains all Intellectual Property Rights in its Subscriber Data and Empwr.ai retains all Intellectual Property Rights in the Services.
6.2 Subscriber Feedback. At its option, Subscriber may provide feedback or suggestions about the Services to Empwr.ai (“Subscriber Feedback”). If Subscriber provides Subscriber Feedback, Empwr.ai may use that Subscriber Feedback without restriction and without obligation to Subscriber.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into this Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services. Empwr.ai warrants that during the applicable Subscription Term, (a) the Service will perform materially in accordance with Documentation and, (b) it will not knowingly introduce any Malicious Code (collectively, the “Service Warranty”). The sole remedy for any breach of the Service Warranty is described in Section 10.
7.2 DISCLAIMER OF WARRANTIES. Except as expressly provided for in this Agreement, Empwr.ai does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, noninfringement, or error-free or uninterrupted use of the Services or Software and, (b) any representations about content or information accessible through the Services.
8. LIMITATION OF LIABILITY
8.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 8.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to this Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.
8.2 Limitation on Amount of Liability. Each party's total aggregate Liability for damages arising out of or relating to the Agreement in connection with the Services, is limited to the Subscription Fees Subscriber paid for such Services during the 12 month period before the event giving rise to Liability.
8.3 Unlimited Liabilities. Nothing in this Agreement excludes or limits either party's Liability for (a) its fraud or fraudulent misrepresentation, (b) its obligations under Section 9 (Indemnification), (c) its infringement of the other party's Intellectual Property Rights, (d) its payment obligations under this Agreement, or (e) matters for which liability cannot be excluded or limited under applicable law.
9. INDEMNIFICATION
9.1 Empwr.ai Indemnification Obligations. Empwr.ai will defend Subscriber and indemnify them against Claims in any Third-Party Proceeding to the extent arising from an allegation that any Service used in accordance with this Agreement, infringes the third party's Intellectual Property Rights.
9.2 Subscriber Indemnification Obligations. Subscriber will defend Empwr.ai and indemnify it against Claims in any Third-Party Legal Proceeding to the extent arising from (a) Subscriber Data, or Subscriber Brand Features, or (b) Subscriber and End User's use of the Services in breach of Section 3.3 (Restrictions).
9.3 Exclusions. Sections 9.1 (Subscriber Indemnification Obligations) and 9.2 (Subscriber Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of this Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under this Agreement, unless the combination is required by this Agreement, or (c) in the case of Empwr.ai, any Services provided to Subscriber free of charge.
9.4 Conditions. Sections 9.1 (Empwr.ai Indemnification Obligations) and 9.2 (Subscriber Indemnification Obligations) are conditioned on the following:
(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 9.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 9.1 (Empwr.ai Indemnification Obligations) or 9.2 (Subscriber Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
(b) Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following (i) the indemnified party may appoint its own non-controlling counsel, at its own expense, and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
9.5 Remedies.
(a) If Empwr.ai reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Empwr.ai may, at its sole option and expense (i) procure the right for Subscriber to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing alternative that has materially equivalent functionality.
(b) If Empwr.ai does not believe the remedies in Section 9.5(a) are commercially reasonable, then Empwr.ai may Suspend or terminate Subscriber’s use of the impacted Services.
9.6 Sole Rights and Obligations. Without affecting either party's termination rights and to the extent permitted by applicable law, this Section 9 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 9 (Indemnification).
10. TERM; TERMINATION
10.1 Agreement Term. The term of this Agreement will begin on the Effective Date and Continue until Subscriber or Empwr.ai elects to terminate Subscriber’s Account and Subscription to the Service. Unless Subscriber’s Account and Subscription to the Service is terminated, Subscriber’s subscription to the Service will renew for a Subscription Term equivalent to the full length of the then expiring Subscription Term. Unless otherwise provided for in any Order Form/Invoice, the Subscription Charges applicable to the renewed Subscription to the Service for any such subsequent Subscription Term shall be Empwr.ai’s standard Subscription Charges for the Service Plan to which Subscriber has subscribed to as of the time such subsequent Subscription Term commences.
10.2 Termination for Breach.
(a) Termination of an Order Form/Invoice. Either party may terminate an Order Form/Invoice if the other party is in material breach of this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice.
(b) Termination of this Agreement. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (i) the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
10.3 Termination for Convenience. Subject to any financial commitments in an Order Form/Invoice or addendum to this Agreement, Subscriber may terminate this Agreement or any applicable Order Form/Invoice for its convenience at any time on thirty (30) days prior written notice, and upon termination, must cease use of the Services.
10.4 Termination Due to Violation of Laws. Empwr.ai may terminate this Agreement immediately on written notice if Empwr.ai reasonably believes that continued provision of the Service used by Subscriber would violate applicable law(s) or has caused Services provider to violate any law(s).
10.5 Effect of Termination. If this Agreement terminates, then all Order Forms/Invoices terminate. If this Agreement or an Order Form/Invoice is terminated, then (a) all access to the Services will terminate (including access to Subscriber Data, if applicable) and Subscriber Data will be deleted in the normal course of operation and cannot be recovered, and (b) all fees, payments or Subscription Charges owed to Empwr.ai for Services used or other obligations will become immediately due. No refunds or credits for Subscription Charges or other fees or payments will be provided to Subscriber if Subscriber or terminates prior to the end of the applicable effective Subscription Term.
11. Service Level Agreement; Service Credits. Empwr.ai commits to service availability of 99.9% during any given calendar month during the Subscription Term, subject to any planned maintenance, unplanned outage or any other circumstance outside of the control of Empwr.ai ( “SLA”). If Empwr.ai fails to meet the SLA in any rolling six-month period, Subscriber may request to discuss possible corrective actions no later than thirty (30) days after the applicable failure occurs. If Empwr.ai agrees there was a failure to meet the SLA, it may issue Subscriber a service credit or refund, whichever it deems necessary, and will be Subscriber’s exclusive remedy for the SLA failure.
12. AI-SPECIFIC DISCLAIMER. The Services use emerging technology and may provide inaccurate or offensive output and are not designed or intended to meet Subscriber’s regulatory, legal or similar obligations.
13. Export. Each party shall comply with the applicable export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, Subscriber shall not make the Service available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; or (b) is listed on any U.S. government list of prohibited or restricted parties.
14.MISCELLANEOUS
14.1 Notices. Under this Agreement, notices to Subscriber must be sent to the Notification Email Address and notices to Empwr.ai must be sent to privacy@empwr.ai.com. Notice will be treated as received when the email is sent. Subscriber is responsible for keeping its Notification Email Address current throughout the Subscription Term.
14.2 Emails. The parties may use emails to satisfy written approval and consent requirements under this Agreement.
14.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
14.4 Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within thirty (30) days after the change of Control.
14.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
14.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
14.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
14.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
14.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
14.11 Governing Law; Waiver of Jury Trial; Agreement to Arbitration. All Claims arising out of or relating to this Agreement or the Services will be governed by Delaware law, without regard to its conflict of laws rules. Each party hereby waives any right to a jury trial in connection with any action or or litigation in any way arising out of or related to this Agreement and agrees to arbitration for such resolution.
14.12 Amendments. Except as stated in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing, expressly states that it is amending this Agreement, and is signed by both parties.
14.13 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms, Plan Modifications, Taxes), Section 5 (Confidentiality, Data Privacy and Security), Section 6 (Intellectual Property Rights; Feedback), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10.5 (Effect of Termination), Section 12 (AI Disclaimer), and Section 14 (Miscellaneous).
14.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement.
14.16 Conflicting Terms. In the event of a conflict, the provisions of an Invoice/Order Form will take precedence over provisions of this Agreement.
14.16 Headers. Headings and captions used in this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.
15. DEFINITIONS
The following definitions shall apply to this Agreement.
“Account”means all Empwr.ai accounts or instances created by or on behalf of Subscriber within the Service.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” has the meaning given in the preamble.
“API” means the application programming interfaces developed and enabled by Empwr.ai that permits Subscriber to access certain functionality provided by the Services.
“Beta Services” means a product, service or functionality provided by Empwr.ai that may be made available to Subscriber to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Control” means control of greater than 50 percent of the voting rights or equity interests of a party.
“Claim” means a claim, demand, lawsuit or other legal proceeding brought against a party to this Agreement.
“Confidential Information” means information that one party discloses to the other party under or in connection with this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Subscriber Data is considered Subscriber’s Confidential Information.
“Delegates” has the meaning given in Section 5.1 (Confidentiality; Data Privacy and Security).
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service or describing Service Plans, as applicable, provided or made available by Empwr.ai to in the applicable Empwr.ai help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
“Data Controller” has the meaning given to it by applicable privacy law, or absent such meaning or law, by the EU GDPR.
“Data Processor” has the meaning given to it by applicable privacy law, or absent such meaning or law, by the EU GDPR.
“Effective Date” means the date of the last party’s signature.
"End User(s)" means the individuals who are permitted by Subscriber to use or receive the Services. For clarity, End Users may include employees of Subscriber’s and other authorized third parties.
"Export Control Laws" means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
“Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
“Legal Process” means an information disclosure made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
“Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
“Notification Email Address” the email provided by Subscriber for notification by Empwr.ai.
“Order Form or Invoice” means any Empwr.ai generated on-line registration page or order form executed and approved by Subscriber with respect to its subscription to the Service, which form may detail, among other things, the number of Users authorized to use the Service under its subscription to the Service and the Service Plan applicable to its subscription to the Service.
“Process” has the meanings given by applicable privacy or law or, absent any such meaning or law, by the EU GDPR.
“Service Plan” means the subscription Services agreed to by the parties in an Order Form or Invoice.
“Service” shall include the video conversation workflow tools, system, and services provided by Empwr.ai, including, individually and collectively, Software, the API and any Documentation. Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (“Updates”) are also subject to these Terms and Empwr.ai reserves the right to deploy Updates at any time.
“Service Downgrade” has the meaning given in Section 2 (Payments, Delinquent Payments, Suspension).
“Service Level Agreement” has the meaning given in Section 11 (Service Level Agreement; Service Credits).
“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Website applicable to the Service) for the Services to which You subscribe.
“Service Upgrade” has the meaning given in Section 2 (Payments, Delinquent Payments, Suspension).
“Service Warranty” has the meaning given in Section 7.1 (Warranties).
“Subscriber Data” means data provided to Empwr.ai by Subscriber or End Users through the Services under the Account, and data that Subscriber or End Users derive from that data through their use of the Services.
“Subscriber Feedback” has the meaning given in Section 6.2 (Intellectual Property Rights Feedback).
“Subscriber Personal Data” means the personal data contained within Subscriber Data, including any special categories of personal data or sensitive data defined under applicable privacy law.
“Subscription Charges” has the meaning given in Section 2.1 (Payment Terms; Plan Modifications, Taxes).
“Subscription Term” means the period during which Subscriber agreed to subscribe to the Service on the applicable Order Form/Invoice.
“Taxes” means all government-imposed taxes, except for taxes based on Empwr.ai’s net income, net worth, asset value, property value or employment.
"Third-Party Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
“User” means an authorized user of the Account and Service through use of a User Login and procured by an applicable Order Form/Invoice.
“User Login” has the meaning given in Section 1.2 (Account).