Consumer AI LLC Terms and Conditions
Last updated October6, 2021
THESE Terms and Conditions, together with the applicable Purchase Order(s) (“PO”), sets forth the terms and conditions under which Consumer AI LLC (“Company”) will provide the Services (as defined herein) to the user accessing our services/data (“Client”). These Terms and Conditions, together with any applicable POs, collectively form the “Agreement.” In the event of any conflict between these Terms and Conditions and a PO, the PO shall prevail to the extent of such conflict. Company and Client may be referred to individually as “a Party” and together as “the Parties” herein.
NOW, THEREFORE, in consideration of the mutual promises and the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party to the other, the parties, intending to be legally bound by the terms of this Agreement, hereby agree as follows:
i) Company hereby agrees to provide the services (hereafter the “Services”), to Client, as specifically requested and detailed in the applicable PO.
ii) Client grants to Company a non-exclusive license to use the Client’s name, trademarks, copyrights, logos and any other marketing materials (“Marks”) if, and as needed, in connection with the Services. Company acknowledges that ownership of the Marks belongs to the Client and that all use of the Marks by Company shall insure to the benefit of and be on behalf of the Client.
iii) Company will work together with the Client to set a reasonable timeline for the Services. Any delays in provision of information, approvals, payment, access to personnel and/or changes to plans or materials will alter this timeline and may result in delays and additional costs. Under no circumstances will Company be responsible or liable in any matter for delays and changes to the timeline arising out of or due to any unforeseen circumstances that are not in its control or actions or inactions of Client.
iv) Company may use subcontractors to provide or perform certain of the Services hereunder, provided however that Company shall (a) ensure that all such subcontractors comply with the terms of this Agreement (including without limitation compliance with all applicable laws); and (b) be fully responsible for such subcontractors’ performance hereunder.
v) If Client requests to adjust, change or add services beyond what was quoted in the applicable PO, a separate PO or change order will be provided, detailing those services and prices. The additional services will not be rendered until and unless the additional PO is signed.
i) Subject to Client’s payment of all applicable fees and full compliance with the terms and conditions set forth in this Agreement, Company grants to Client a non-transferable, non-assignable, non-exclusive, revocable, limited license to use the Data Lists provided by Company during the Term of this Agreement. Client acknowledges and agrees that the Data Lists are licensed solely for the use of Client’s business and marketing purposes in its ordinary course of business. Client has and will obtain no rights to the Data Lists or Services except for the limited rights to use them as expressly granted by this Agreement.
ii) Limitations: Client may not
(1) Sell, transfer, trade, convey, copy or sublicense the Data Lists or Services;
(2) remove any proprietary or copyright legend from the Data Lists or Services;
(3) reproduce, publish, or distribute content in connection with the Data Lists or Services that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right;
(4) make the Data Lists or Services, in whole or in part, available to any other person, entity or business without the prior written consent of Company, except as may be required for scrubbing of the data;
II. TERM OF AGREEMENT
The term of this Agreement will begin on the Effective Date and continue for a period of twelve (12) months or as otherwise provided in the applicable PO. Unless otherwise provided in the PO, this Agreement shall be automatically renewed for successive twelve (12) month periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiration of the applicable Initial Term or Renewal Term.
i) Either party may terminate this Agreement upon thirty (30) days written notice for any reason or no reason. However, notwithstanding any termination, Client remains obligated for all payment due to Company for the applicable PO. Termination of this Agreement will automatically terminate all of the POs under it.
ii) Either party may terminate this Agreement upon seven (7) days written notice if the other party materially breaches any provisions of this Agreement, and such breach has not been cured after notice of the same within such seven (7) day period.
iii) Company may suspend performance of some or all Services under this Agreement immediately upon written notice to Client if Client neglects to make any required payments when due.
iv) Notwithstanding anything to the contrary in this Agreement, Company may immediately terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law.
v) Company shall also have the right to immediately terminate the Agreement if the Client discontinues business, or becomes insolvent, or if any action relating to the bankruptcy or insolvency of the Client is instituted.
II.3 Effects of Termination.
This Agreement and the rights granted are effective until terminated. Upon the effective date of termination of this Agreement, for any reason, Client shall immediately render all sums and payments for all Fees due and owing to Company through the effective date of termination;
III. INDEPENDENT CONTRACTOR
III.1 Independent Contractor
It is the express intention and understanding of the parties that Company is an independent contractor and not an employee, agent, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and Company.
This is a non-exclusive arrangement, and Company may provide or offer its services freely at any time to any other client or business.
In consideration for the Services performed by Company during the Term, Client agrees to pay Company such compensation as described further in the applicable PO (“Fees”).
IV.2 Company Costs and Expenses.
Client will reimburse Company for pre-approved expenses incurred by Company in connection with the Services.
IV.3 Payment Terms
All payments due from Client to Company shall be paid within thirty (30) days from the date of the applicable invoice unless otherwise provided in the applicable PO. If Client fails to pay Company within five (5) business days from the date payment is due, then Company may, without limiting and in addition to its other available remedies, assess a late payment charge at the rate of two percent (2.0%) per month or the maximum rate allowed by applicable law, whichever is the lesser. In the event Client fails to make a payment, Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
A request for a refund due to a breach of this Agreement by Company must be received from Client no more than thirty (30) days after Client’s receipt of Company’s on-boarding email. Except as otherwise stated herein, Client acknowledges and agrees that there shall be no refunds under this Agreement for any reason, any Service delivered or scheduled to be delivered. In case Client requests early termination for any reason other than breach by Company, Client shall be liable for all Fees as otherwise due and specified in the applicable PO.
Unless otherwise specified in an PO, Client shall be solely responsible for any applicable sales, use or any other taxes where services are consumed (collectively “Taxes”) payable under, or arising out of, or in connection with, this Agreement. Any prices provided by Company are exclusive of Taxes.
V. REPRESENTATIONS AND WARRANTIES
V.1 Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or by which it is otherwise bound; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines.
V.2 Client further represents and warrants that Client, will treat all information in the Data Lists in accordance with all privacy laws and other applicable laws, including, without limitation, (i) as may be applicable to the use, unauthorized access, confidentiality and security of the information contained therein (ii) all laws, rules, regulations and guidelines applicable to marketing and telemarketing activities. Client agrees that it will not use the Data Lists or Services will not use the Services to disseminate material, including, but not limited to, that which is illegal, obscene, pornographic, shows nudity, indecent, offensive to the average reasonable person, threatening, abusive, libelous, defamatory, discriminatory, promotes racism, bigotry or hatred; infringes on any intellectual property or is in violation of any copyright or trademark law; in violation of any right of privacy; that promotes harmful, unlawful, seditious, or criminal activity; that could give rise to civil liability; that contains viruses, worms, Trojan Horse or other harmful files; or that appears or purports to be from someone other than the Client or that impersonates another person or entity. Client will maintain appropriate physical, technical and organizational measures to protect all information in the Data Lists against accidental loss or unauthorized access, use, disclosure, alteration, or destruction. Client will notify Company immediately in writing of any security breach regarding the Data Lists. In addition, Client warrants that it owns or controls all right, title, and interest in and to the Marks and that it will not infringe upon or violate the intellectual property rights of others.
V.3 Company further represents and warrants that Company will provide the Services in material conformance with the specifications of the applicable PO, and in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. Client understands that the Data Lists are derived from third party data that Company has the rights to share with Client.
V.4 Except as otherwise set forth herein, Company’s services are provided on an “as is” and “as available” basis, and Client’s use of Company’s services is at its own risk. Client is solely responsible for any and all acts or omissions taken or made in reliance on the Services or the information contained therein, including inaccurate or incomplete information. Except as otherwise set forth herein, Company does not make, and hereby disclaims, any and all express, implied or statutory warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, compliance with law, security, absence of viruses or other malicious software, and any warranties arising from a course of dealing, usage or trade practice. Furthermore and without limitation, Company does not warrant that the use of Company’s Services will result in any particular results or revenues.
V.6 Client agrees that Company has made no agreements, representations or warranties other than those expressly set forth in this Agreement, and that no future agreement, representation or warranty of Company with regard to Services provided under this agreement shall be effective unless expressly stated in an amendment to this Agreement signed by both parties.
VI. LIMITATION OF LIABILITY
VI.1 It is expressly agreed that in no event shall Company, or any officers, directors, stockholders, agents, and employees, be liable for any special, indirect, consequential, or exemplary damages, including but not limited to, loss of profits or revenues, loss of use, or loss of information or data, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theory of liability, even if Company has been apprised of the possibility or likelihood of such damages occurring. Client acknowledges and agrees that the Fees and other charges which Company is charging under this agreement do not include any consideration for assumption by Company of the risk of Client’s direct, indirect, consequential or incidental damages. Company’s aggregate liability under this agreement, regardless of theory of liability, shall be limited to the aggregate Fees actually paid to Company by Client under this Agreement for the six (6) month period preceding the event first giving rise to the claim.
VI.2 Notwithstanding anything to the contrary herein, Company’s sole and exclusive liability and Client’s sole and exclusive remedy for all actual defects in the Services will be, in Company’s sole discretion, to either: (A) re-perform such Services; or (B) fully or partially credit or refund the Fees paid by Client for such Services.
VI.3 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Company’s liability shall be limited to the maximum extent permitted by law.
VII.1 Each Party agrees to indemnify, defend and hold harmless the other Party and each of its respective agents, officers, directors, employees and affiliates (“Indemnified Parties”) from and against any and all claims, suits, liability, damages and/or costs (including without limitation reasonable attorney’s fees and costs) (collectively, “Claims”) resulting directly or indirectly from: (a) a breach of this agreement, any warranty and/or representation herein; or (b) any violation of applicable federal, state or local laws or regulations.
VII.2 The indemnifying party may not enter into any settlement that would admit any wrongdoing by or impose any liability on the part of the indemnified party, or impose any obligation on the indemnified party, without the indemnified party’s prior written consent. Each party’s indemnification obligations under this Agreement will be reduced to the extent the other party is held to have been contributorily negligent or otherwise at fault. Any claim or action against Company must be brought within twelve (12) months after the event first giving rise to the claim. Each party shall have a duty to mitigate its damages for which the other party is or may be responsible
VIII.1 All data, information, documents, materials, supplies and equipment (“Client Materials”) provided by Client to Company in connection with this Agreement shall be and remain the property of Client. Client, retains all intellectual property rights in such information and materials. Company is granted no right or license to use such information or materials except as follows: Client hereby grants to Company a royalty-free, non-exclusive, revocable, nontransferable, nonsublicensable, limited license to use the Client Materials as appropriate solely to perform the Services and develop and deliver the Deliverables. Client represents and warrants that any and all Client Materials provided by it to Company, is the rightful property of Client or Client has full right to supply such items to Company.
VIII.2 Client agrees that, as between Company and the Client, Company shall have sole and exclusive ownership of, and all right, title, and interest in and to, the Company Materials, including the Data Lists and Services, and all modifications and enhancements of the Services (including ownership of all copyrights and other intellectual property rights), subject only to the rights expressly granted to the Client under this Agreement. This Agreement does not provide the Client with title or ownership of any Company Material or Service, but only a limited right to use the same solely upon the terms expressly set forth in this Agreement. For the purpose of clarity, nothing provided by Company under this Agreement, including the Company Materials or Services, is to be considered a “work for hire” and Company does not convey, transfer or assign any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights, to Client. “Company Materials” means the Data Lists, and any other documentation provided by, or on behalf of, Company to the Client as part of this Agreement, including manuals, programs, files, reports, analysis, data, specifications and information. All other rights are reserved.
VIII.3 Feedback. Company may use any reports, comments, ratings, reviews and suggestions in any form regarding the Services that Client provides to Company (collectively, the “Feedback”). Client grants Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.
IX.1 Either party (the “Disclosing Party”) may from time to time disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” is all nonpublic information concerning the business, technology, and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as “confidential” and subject to the undertakings of this Agreement. For the purpose of clarity, the terms of this Agreement and the Company Materials are considered Company’s Confidential Information. Recipient will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement.
IX.2 The commitments in this Agreement will not impose any obligations on Recipient with respect to any portion of the received information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by Recipient or its representatives without the use of Confidential Information; or (v) is required to be disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal or administrative agency; provided that, in the case of any disclosure required by court order, the Recipient shall give the Disclosing Party as much advance notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure.
IX.3 Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party’s option, Recipient shall promptly either destroy all Confidential Information in tangible form in its possession, or return all such copies to Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party’s written request.
X.1 During the term of this Agreement and for a period of twelve (12) months after the termination of this Agreement for whatever reason, Client agrees not to attempt to divert or interfere with the development of Company’s business by soliciting, hiring, or contracting with any employee or contractor of Company.
X.2 Client agrees that its obligations in this section are necessary and reasonable in order to protect Company and its business. Accordingly, Client agrees that, in addition to any other remedies that may be available, Company shall be entitled to seek injunctive relief against the threatened breach of this section or the continuation of any such breach by the Client, without limiting any other rights and remedies to which the Company may be entitled to at law, in equity or under this Agreement.
XI. GENERAL PROVISIONS
Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Company may assign this Agreement to any successor in interest as a result of a merger or a stock or asset purchase. Any attempted assignment in violation of this provision shall be deemed void. This Agreement shall be binding upon and shall benefit the parties and their respective successors and permitted assigns.
Each party shall be responsible for procuring and maintaining for itself and its employees all insurance coverages as appropriate for its business and required by Federal or State law, including workers’ compensation insurance.
Other than as explicitly stated herein, neither party shall use the other party’s names, symbols, trademarks, or other marks without the other party’s prior written consent.
Any notices or communication under this Agreement shall be in writing. All notices shall be given by electronic mail to the address of the Party specified below. For contractual purposes, the Parties agree that all terms and conditions, agreements, notices, disclosures, and other communications that are provided electronically satisfy any legal requirement that such communications would satisfy if they were otherwise mailed. All notices shall be effective upon the day following sending by electronic mail. Each Party may change its email address for receipt of notice by giving notice of such change to the other Party.
If to Company:
The failure of either party hereto to insist in any one or more instances upon strict compliance with the performance of this Agreement or to take advantage of any respective rights hereunder shall not be construed to be a waiver of such provisions or the relinquishments of such rights in other instances, but the same shall continue and remain in full force and effect.
XI.6 Governing Law and Dispute Resolution.
This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. For any dispute, the Parties agree to first attempt to resolve the dispute informally. In the event that the Parties are unable to resolve a dispute after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief which may be brought in federal or state courts situated in Harris County, Texas) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Harris County, Texas, unless the Parties agree otherwise. The arbitrator, witness, party representative, counsel, expert or staff may participate by video conference where such participant (when participating) can be heard and seen (i.e., Zoom). Each Party will be responsible for paying its applicable JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Nothing in this Section shall be deemed as preventing a Party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its Confidential Information, intellectual property rights or other proprietary rights. Each party knowingly, voluntarily and intentionally waives its right to a trial by jury, to the extent permitted by law, in any suit, action or other proceeding arising out of, or relating, to this Agreement.
XI.7 Expenses and Attorneys’ Fees.
In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
XI.8 Binding Agreement
This Agreement shall be binding upon both parties and upon their respective executors, administrators, successors, and assigns.
In the event that any provisions hereof shall be held to be invalid or unenforceable for any reason whatsoever, it is agreed that such invalidity or unenforceability shall not affect any other provision of this Agreement and the remaining provisions shall remain in full force and effect.
XI.10 Entire Agreement.
This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services in any manner. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the parties hereto.
XI.11 No Third party Beneficiaries:
Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties, their licensors, and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.
XI.12 Advice of Counsel & Authority:
Each party acknowledges: (a) having fully read this Agreement in its entirety; (b) having had full opportunity to study and review this Agreement; (c) having been advised that all parties have the right to consult and should consult independent counsel respecting their rights and duties under this Agreement; and (d) having had access to all such information as has been requested. The individuals, corporations or entities entering into this Agreement represent and warrant that they are competent and capable of entering into a binding contract, and that they are authorized to enter into this Agreement on behalf of the parties.
Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
All provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
XI.15 Force Majeure:
Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.
Questions or Concerns
If you have questions or concerns about Consumer AI’s terms and conditions,
please contact us at:
Consumer AI LLC
30 N Gould St. Ste R
Sheridan, WY 82801