Terms and Conditions

1. DEFINITIONS

Account” means a unique account established by Client to enable its Authorized Users to access and use BARK BOT’s Service(s).

Account Administrator” is an Authorized User who is assigned and expressly authorized by Client as its agent to manage Client’s Account, including but not limited to, as applicable: configure administration settings, assign access and use authorizations; request different or additional services; provide usage and performance reports; manage templates; execute approved actions or services; assist in third-party product integrations; and to receive privacy and/or confidential disclosures. Upon written notice by Client’s Account Administrator to BARK BOT, Client may appoint an employee or a third-party business partner or contractor to act as its Account Administrator. Client agrees to indemnify and hold BARK BOT harmless from any harm resulting from Client changing its Account Administrator, Client’s failure to appoint an Account Administrator, and/or using an employee or third-party as its Account Administrator.  Client authorizes BARK BOT to (i) communicate with and take direction from the Account Administrator, and (ii) in the event of conflicting directions from more than one Account Administrators and/or from Client and its Account Administrator, BARK BOT may, in its discretion, select which direction to take.

Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls fifty percent (50%) or more of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.

Authorized User” means an employee, business partner, contractor, or agent of Client or its Affiliates who is registered by Client in Client’s Account to use BARK BOT’s Service(s). An Authorized User must be identified by a unique email address and username, and two or more persons may not use the same Authorized User account. If the Authorized User is not an employee of Client, use of the Service(s) is only permitted if the user: (i) is under confidentiality obligations with Client at least as restrictive as those in the Agreement; (ii) is accessing or using the Service(s) solely to support Client’s and/or Client Affiliates’ business purposes; and (iii) agrees to comply with all of Client’s obligations under the Agreement.

Confidential Information” means: any information of a Party or its Affiliates that is (a) disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party, including its Affiliates, receiving the Confidential Information (“Recipient”) (for oral disclosures, those designated as confidential or proprietary when disclosed to the Party or summarized in writing and delivered to the Recipient within thirty (30) days of the other initial oral disclosure); (b) that due to the nature of the information the Recipient should reasonably understand it to be confidential information of the disclosing Party; and (c) the terms and conditions of the Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault of the Recipient; (ii) was rightfully already in the Recipient’s possession prior to the time of disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.

Client Data” means any non-public content, media, documents, materials, data and information that Client or its Authorized Users provide for the provision of Services. Client Data does not include any component of the Services provided by BARK BOT such as code, meta-data, or instructional materials provided to Client by or on behalf of BARK BOT.

Documentation” means BARK BOT’s then-current technical and functional documentation for the Services as made generally available to Client by BARK BOT.

Indemnified Party(ies)” means the Party (whether BARK BOT or Client) being indemnified under Section 9 (Third-Party Claims), including its employees, directors, agents, and representatives.

Indemnifying Party(ies)” means the Party (whether BARK BOT or Client) that is providing indemnification under Section 9 (Third-Party Claims).

“Master Services Agreement” (herein “MSA”) means this document, along with any amendments, exhibits or addendums thereto.

“Order Start Date” means the anticipated start date of the applicable work set forth in the SOT.  Client acknowledges that the Order Start Date is an estimate only, and not a representation or warranty of an actual start date by BARK BOT.

Services” means any services or products provided by BARK BOT as set forth in the SOT agreed to as between BARK BOT and Client. Services may include integration, programming, consulting, architecture, training, configuration, administration, and similar ancillary BARK BOT Services that are set forth in the SOT. Services may also include software, source code, or other technology licensed to BARK BOT from third parties and embedded into the services that BARK BOT provides to Client. Notwithstanding the foregoing, BARK BOT Services do not include Third-Party Services (defined below) that may be required for the proper operation of BARK BOT’s Services. Nothing contained herein gives Client rights to BARK BOT’s Services and/or work product given to Client as a form of ‘work for hire’.

“Service Start Date” means the estimated date set forth in any notice from BARK BOT that the chatbot(s) created by BARK BOT for the Client (as described in the SOT) will be ready for Client’s use.  Client acknowledges that the Service Start Date is an estimate only, and not a representation or warranty of an actual start date.

System” means the software systems, programs, network facilities, and the software and/or hardware used by BARK BOT to provide Client with BARK BOT Services.

Third-Party Services” means services, software, products, applications, integrations and other features or offerings that are obtained by Client directly from a third party and used in conjunction with BARK BOT’s Services or that are created and sold by a third- party and that are integrated into BARK BOT’s work product or Services for Client.  Client shall be solely responsible for the payment of any fees due to a Third Party for any Third-Party Services; and shall be solely responsible for keeping such Third-Party Services active.

2. USAGE AND ACCESS RIGHTS

  • Usage Rights. Subject to the terms and conditions of the Agreement, BARK BOT grants to Client solely for its and its Affiliates’ business purposes; a worldwide, limited, non-exclusive, revocable, non-transferable right and license during the Term to: (a) access and use BARK BOT Services solely for the purposes set forth in the Agreement; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the BARK BOT Services solely for the purposes set forth in the Agreement; and (c) to access and use the Documentation solely for the purposes set forth in the Agreement. Client will ensure that Affiliates and/or Authorized Users using the BARK BOT Services under its Account comply with all of Client’s obligations under the Agreement; and Client hereby accepts responsibility for their acts and omissions as though they were those of Client.

  • Usage Restrictions. Client agrees it will NOT:
  • Suspension of Access. BARK BOT may suspend, remove or disable any BARK BOT Services, Account(s) or content that BARK BOT reasonably and in good faith believes violates the Agreement, including but not limited to non-payment of any applicable fees. BARK BOT will use reasonable efforts to notify Client prior to any such suspension, removal or disablement, unless BARK BOT believes that: allow the use of, or itself use, BARK BOT Service (a) it is prohibited by law from doing so; or (b) it is necessary to delay notice in order to prevent imminent harm to BARK BOT or a third party. Under circumstances where notice is delayed, BARK BOT will use reasonable efforts to provide notice if and when the related restrictions in the previous sentence no longer apply, if actually known to BARK BOT. All fees for the BARK BOT Services shall continue during any such period of suspension.

  • Use of and Liability For Third-Party Services. Client shall be solely responsible for the payment of any fees due to a Third Party for any Third-Party Services. Liability for any acquisition or use by Client of Third-Party Services, even if used in conjunction with or integrated into BARK BOT Services, is solely between Client and the applicable Third-Party Service provider. BARK BOT does not warrant, support, or assume any liability or other obligation with respect to such Third-Party Services unless liability is expressly accepted by BARK BOT in writing signed by an authorized representative of BARK BOT. If any BARK BOT Services rely, directly or indirectly, on the continued operation of any integrated Third-Party Services, BARK BOT’s performance hereunder is specifically conditioned upon the continued operation of such Third-Party Services.  In the event Client chooses to integrate or interoperate Third-Party Services with BARK BOT Services in a manner that requires BARK BOT or the BARK BOT Services to exchange Client Data with such Third-Party Service provider, Client: (a) grants BARK BOT permission to allow the Third-Party Service provider to access Client Data and usage information as appropriate and necessary to enable the interoperation of that Third-Party Service with the BARK BOT Services; (b) acknowledges that any exchange of data between Client and any Third-Party Service provider may be subject to the Third-Party Service provider’s terms and conditions governing the use of such Third-Party Services (the presentation and manner of acceptance of which is controlled solely by the Third-Party Service provider); (c) agrees that BARK BOT is not responsible for any disclosure, modification or deletion of Client Data resulting from BARK BOT allowing access to such data to Third- Party Service providers; and (d) agrees that Client will indemnify, defend and hold BARK BOT harmless for any claims or damages resulting from Client’s interoperation or use of Third-Party Services in conjunction with BARK BOT’s Services.

  • Customer Support. Client acknowledges and agrees that any customer support needed that is outside the scope of BARK BOT Services is not the responsibility of BARK BOT and Client agrees to seek such customer support from the chatbot hosting platform. This includes, but is not limited to, service outages by the chatbot hosting platform.  Client further acknowledges and agrees that BARK BOT is not responsible for any ongoing maintenance of the chatbot or for any services outside of the BARK BOT Services; and that Client will hold BARK BOT harmless for any business interruptions, losses, or damages suffered by Client as a result of service outages of the chatbot hosting platform and for any other matters outside the scope of the Agreement.

3. OWNERSHIP

  • Client Data. Client Data processed using BARK BOT Services is and will remain, as between Client and BARK BOT, owned by Client. Client hereby grants BARK BOT the right to process, transmit, store and disclose the Client Data in order to provide BARK BOT Services to Client, subject to the terms of Section 11.2 (Required Disclosure) below.

 

  • BARK BOT Services. BARK BOT, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to BARK BOT Services and Documentation, including any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided thereunder. All deliverables provided by or for BARK BOT in the performance of BARK BOT’s Services, excluding Client Data and Client Confidential Information, are owned by BARK BOT and constitute part of the BARK BOT Service(s) or Documentation under the Agreement. Nothing contained herein grants Client ‘work for hire’ rights to any BARK BOT Services. Client agrees that all of the processes, methods, plans, strategies, technologies, techniques, and/or algorithms used or generated for the BARK BOT Services are proprietary in nature and belong solely to BARK BOT.

 

  • Lease and Use of the Chatbot. Client acknowledges and agrees that Client is only leasing the chatbot or chatbots created by BARK BOT for the Client for the Term and that the chatbot is owned by BARK BOT. Client further acknowledges and agrees that the actual use of the chatbot or chatbots created by BARK BOT for the client during the Term of the SOW is the sole responsibility of the Client.

 

  • BARK BOT encourages Client to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to BARK BOT Services and related resources (“Feedback”). To the extent Client provides Feedback, Client grants to BARK BOT and its Affiliates all rights to said Feedback. In the event that by operation of law, such Feedback rights cannot be conveyed to BARK BOT, Client alternatively agrees that they grant BARK BOT a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide license to integrate, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such Feedback into changes to BARK BOT Services) without restriction or compensation to Client. Client will ensure that: (a) Feedback does not identify Client, its Affiliates, or Authorized Users, or include any Client Data; and (b) Client has obtained any required authorization from any Authorized User or other third party to grant the rights or licenses described herein. Feedback does not constitute Client Confidential Information.

4. SECURITY AND CLIENT DATA

  • Security and Data Breach Liability. BARK BOT will use commercially reasonable security technologies to provide Client with BARK BOT Services. However, nothing contained herein is a guarantee or warranty that unauthorized access to data will not occur, nor does anything herein create any liability on behalf of BARK BOT in the event there is a third-party that obtains unauthorized or illegal access to Client’s Data. Client agrees that BARK BOT’s liability in the event there is unauthorized access to or use of any Client Data caused by BARK BOT’s actions or inactions, is limited solely to the costs charged to client for the compromised BARK BOT Services. Client acknowledges that Client has obtained or had the opportunity to obtain data-breach or business interruption insurance independent of BARK BOT to protect Client against costs related to data breaches and/or business interruption, and that nothing contained herein constitutes an obligation by BARK BOT to indemnify, defend, or hold Client harmless from any third- party claims resulting from any unauthorized access to Client Data. Client further acknowledges that even the best commercially available security measures may be compromised or defeated by individuals, entities or government actors and that BARK BOT cannot guarantee or warranty against such actions by third-parties. Client must notify BARK BOT if any particular type of Client Data is especially sensitive such that it requires additional or heightened data security and any additional or differing security obligations must be expressly set forth in a separate, written and signed agreement between the Parties.

 

  • Client Data. Client is responsible for Client Data (including Client personal data) as entered into, supplied or used by Client and its Authorized Users. Further, Client is solely responsible for determining the suitability of BARK BOT Services for Client’s business needs and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Client Data and Client’s use of BARK BOT Services. Client grants to BARK BOT the non-exclusive right to process Client Data (including personal data) to the extent necessary for BARK BOT: (a) to provide BARK BOT Services; and (b) to verify Client’s compliance with the restrictions set forth in Section 2.2 (Usage Restrictions) if BARK BOT has a reasonable belief of Client’s non-compliance; and/or (c) as otherwise set forth in the Agreement.

 

  • Usage Data. BARK BOT may collect and use data or information generated or derived from the use of BARK BOT Services (“Usage Data”) for its business purposes, including benchmarking, analytics, marketing, and developing, training and improving its products and services. BARK BOT will deidentify and anonymize Client’s Usage Data as necessary, and will disclose such Usage Data in aggregate form only in a manner that does not identify Client, its Authorized Users, Client Data, or Client’s Confidential Information.

5. PAYMENT OF FEES

  • Onboarding Fees. Client shall pay BARK BOT an upfront Initial Onboarding Fee in the amount and by the due date set forth in the SOT.  The Initial Onboarding Fee is due prior to any work being performed by BARK BOT. Client shall also pay BARK BOT a Second Onboarding Fee in the amount and by the due date set forth in the SOT.

 

  • Annual Service Fees. For each Renewal Period (as defined in Section 7), Client shall pay BARK BOT an annual service fee.  The amount of the initial Annual Service Fee is set forth in the SOT.  For each annual Renewal Period, the Annual Service Fee shall automatically increase by [$0/ 0%] over the amount charged in the prior year.  The Annual Service Fee is payable on or prior to the first day of the applicable Renewal Period. 

 

  • Payments; Late Fees; Attorneys’ Fees. All amounts due to BARD BOT will be denominated and payable in United States Dollars.  If any payment (whether an Onboarding Fee, Annual Service Fee, or other payment due to BARK BOT hereunder) is more than five (5) days’ late, BARK BOT may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law.  Client will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by BARK BOT to collect any amounts that are not paid when due. If Client fails to timely pay any amounts due under the Agreement, then without limitation of any of its other rights or remedies, BARK BOT may suspend performance of BARK BOT Services until BARK BOT receives all past due amounts from Client.

 

  • Purchase Orders. If Client issues a purchase order, then it shall be for the full amount set forth in the SOT, and BARK BOT hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Client, and BARK BOT conditions assent solely based on the terms and conditions of the Agreement as offered by BARK BOT.

 

  • Third-Party Services. Client acknowledges that BARK BOT Services are dependent upon the continued, uninterrupted performance of certain Third-Party Services; and BARK BOT does not guaranty, or warrant in any manner, the performance of such Third-Party Services. Client agrees to do all things necessary to keep all Third-Party Services active and properly functioning, including payment of any and all fees associated therewith; and further agrees that failure of BARK BOT Services to perform as intended due to the interruption, non-performance, or modification, of any Third-Party Services, does not relieve Client of its obligations to provide payment to BARK BOT pursuant to Sections 5.1 and 5.2 above.

6. TAXES

  • Tax Responsibility. All payments required by the Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), and similar transactional taxes and the interest and penalties thereon (collectively, “Taxes”). Without limiting the foregoing, and other then for Taxes that are assessed against BARK BOT by an authorized taxing authority (such as income taxes for income received by BARK BOT), Client is responsible for all Taxes associated with its use of BARK BOT’s Services. Taxes shall not be deducted from the payments to BARK BOT, except as required by law, in which case Client shall increase the amount payable as necessary so that after making all required deductions and withholdings, BARK BOT receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Client claims tax exempt status for amounts due under the Agreement, it must provide BARK BOT with a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of Taxes to Client’s invoice. Each Party is responsible for Taxes imposed on its net income. Unless otherwise expressly indicated by Client, Client hereby confirms that BARK BOT can rely on the Client’s name and address in the SOT as being the name and place of Client for Tax purposes. The Parties’ obligations under this Section 6.1 (Tax Responsibility) shall survive the termination or expiration of the Agreement.

 

  • Invoicing Taxes. If BARK BOT is required to invoice or collect Taxes associated with Client’s purchase of the BARK BOT Services, BARK BOT will issue an invoice to Client including the amount of those Taxes, itemized where required by law. If applicable, Client will provide to BARK BOT its EIN, VAT, GST or similar tax identification number(s) upon request.

7. TERM AND TERMINATION

  • Term; Renewal Periods. The term of this MSA (the “Term”), will begin the Order Start Date and will continue for one (1) year, subject to any termination or automatic renewals.  The Term shall automatically renew for successive one (1) year periods each (each, a “Renewal Period”), unless Client provides written notice of termination to BARK BOT no less than thirty (30) days before the beginning of the next Renewal Period.  Notwithstanding the foregoing or anything to the contrary in the MSA, BARK BOT may terminate the Agreement by providing at least ninety (90) days’ advanced written notice of its election to terminate the Agreement.  Any term or provision of this MSA that by its design is intended to survive the termination of any Term shall remain valid and in effect.

 

  • Termination for Breach or Insolvency. If either Party commits a material breach or defaults in the performance of any of its obligations under the Agreement, then the other Party may terminate the Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. Notwithstanding the foregoing, BARK BOT may, at its sole election, terminate the Agreement at any time following Client’s failure to timely pay any fees owing to BARK BOT, by providing written notice thereof to Client; whereupon no cure period shall be available to Client. Either Party may terminate the Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or in the event there is an assignment of controlling interest in a Party for the benefit of creditors.

 

  • Post-Termination Obligations. If the Agreement expires or is terminated for any reason, Client agrees: (a) to pay to BARK BOT any unpaid amounts that have accrued before the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Client with respect to the BARK BOT Services and related intellectual property will immediately terminate; (d) BARK BOT’s obligation to provide any further BARK BOT Services to Client under the Agreement will immediately terminate, except any such BARK BOT Services that are expressly to be provided following the expiration or termination of the Agreement; and (e) the Parties’ rights and obligations under Sections 4.3, 6.1, 7.3, 8.3, and 10 through 13 will survive.

8. WARRANTIES AND DISCLAIMERS

  • BARK BOT Warranties. BARK BOT warrants that: (a) during the applicable Term, the BARK BOT Services, when used as authorized under the Agreement and subject to the continued proper operation of all applicable Third-Party Services, will perform substantially in conformance with the Documentation associated with the applicable BARK BOT Services; and (b) BARK BOT will use commercially reasonable efforts to ensure that the BARK BOT Services do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Client’s system. Client’s sole and exclusive remedy for any breach of these warranties by BARK BOT is for BARK BOT to repair or replace the affected BARK BOT Services to make them conform. If BARK BOT determines that the foregoing remedy is not commercially reasonable or otherwise elects not to conduct such repairs, then either Party may terminate the Agreement and BARK BOT’s liability is limited to fees Client has paid to BARK BOT from the date that BARK BOT was formally notified by Client in writing of the need for repair or replacement.

 

  • Mutual Warranties. Each Party represents and warrants that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of the Agreement; (b) ) the individuals executing this Agreement on behalf of the Parties have the lawful authority and good right to execute the same; and (c) no authorization or approval from any third party is required in connection with its execution of the Agreement.

 

  • EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT, BARK BOT: (A) MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; (C) DOES NOT WARRANT THAT THE BARK BOT SERVICES ARE OR WILL BE ERROR- FREE; AND (D) DOES NOT WARRANT THAT ANY APPLICABLE THIRD-PARTY SERVICES WILL CONTINUE OR OTHERWISE OPERATE DURING THE TERM. CLIENT HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BARK BOT TO ANY THIRD PARTY.

9. THIRD-PARTY CLAIMS

  • BARK BOT. BARK BOT will defend and, in accordance with Section 9.3 (Procedures), indemnify Client’s Indemnified Parties from and against, any alleged infringement of a third-party’s intellectual property rights (each, an “IP Claim”) to the extent arising from any materials that were provided to Client by BARK BOT and that results from Client’s use of the third-party materials BARK BOT provided to Client as authorized under the Agreement.

 

  1. Notwithstanding the foregoing, BARK BOT will not be responsible for any IP Claim due to Client’s or its Authorized User’s combining BARK BOT Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by Client; or Client’s modification of the BARK BOT Services not described in the Documentation or otherwise expressly authorized by BARK BOT in writing.

 

  1. Nothing contained herein obligates BARK BOT to pay for compensatory, consequential, statutory or punitive damages regardless of how such claims are made and indemnification does not include liability to Client for any such damages.

 

  • Client will defend and, in accordance with Section 9.3 (Procedures), indemnify BARK BOT’s Indemnified Parties from and against, any claim, demand, or cause of action by any third party, including but not limited to an IP Claim (collectively, “Third Party Claims”) to the extent arising from: (a) use of the BARK BOT Services by Client or its Authorized Users in violation of the Agreement, the Documentation, or applicable law; (b) any breach by Client of its obligations under Section 2.2 (Usage Restrictions), Section 11 (Confidentiality; Non-Compete), and/or any other term or condition of the Agreement; (c) the nature and content of Client Data processed by BARK BOT or through BARK BOT’s Services; or (d) Claims described in 9.1.1. herein.

 

  • The Parties’ respective obligations in this Section 9 (Third-Party Claims) with respect to IP Claims and Third Party Claims (each a “Claim” and collectively, “Claims”) are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim; and (c) the relevant Indemnified Parties providing reasonable assistance in connection with the defense and settlement of the Claim. Unless otherwise exempted herein, the Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees awarded against them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 9 (Third- Party Claims) and settled by the Indemnifying Party or with its approval. The Indemnifying Party will not, without the Indemnified Parties’ prior written consent, agree to any settlement or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties.

 

  • Infringement Remedy. If Client is enjoined or otherwise prohibited from using any of the BARK BOT Services or a portion thereof based on an IP Claim covered by BARK BOT’s indemnification obligations under Section 9.1 (By BARK BOT) above, then BARK BOT will, at its sole expense and option, either: (a) obtain for Client the right to use the affected portions of the BARK BOT Services; (b) modify the allegedly infringing portions of the BARK BOT Services so as to avoid the IP Claim without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the BARK BOT Services with items of substantially similar functionality so as to avoid the IP Claim. If BARK BOT determines that the foregoing remedies are not commercially reasonable and notifies Client of such determination, then either Party may terminate the Agreement, and in such case, BARK BOT will provide a prorated refund to Client for any prepaid fees for the infringing BARK BOT Services received by BARK BOT under the Agreement that correspond to the unused portion of the Term. The remedies set out in this Section 9 (Third-Party Claims) are Client’s sole and exclusive remedies for any actual or alleged infringement by the BARK BOT Services of any third-party intellectual property right.

10. LIMITATION OF LIABILITY

  • Exclusion of Damages. EXCEPT FOR THE PARTIES’ EXPRESS OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.

 

  • Limitation of BARK BOT’s Liability. EXCEPT FOR BARK BOT’S EXPRESS OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), THE TOTAL, CUMULATIVE LIABILITY OF BARK BOT (AND THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT WILL BE LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TO THE AMOUNTS PAID BY CLIENT FOR THE BARK BOT SERVICE(S) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR ALL CLAIMS INCLUDING BUT NOT LIMITED TO: (A) CLAIMS FOR DAMAGES RESULTING FROM DEATH OR BODILY INJURY, OR PHYSICAL DAMAGE TO TANGIBLE REAL OR PERSONAL PROPERTY, CAUSED BY BARK BOT’S NEGLIGENCE; AND (B) CLAIMS FOR DAMAGES RESULTING FROM BARK BOT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE PARTIES FURTHER ACKNOWLEDGE THAT CLIENT MAY HAVE STATUTORY RIGHTS AGAINST BARK BOT AND CLIENT ACKNOWLEDGES AND AGREES THAT ANY AMOUNTS RECOVERED BY CLIENT AGAINST BARK BOT PURSUANT TO SUCH RIGHTS SHALL BE AGGREGATED WITH ANY OTHER CLAIMS HEREUNDER FOR PURPOSES OF THE CAP ON DAMAGES SET FORTH ABOVE.

 

  • Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by BARK BOT to Client and is an essential element of the bargain between the Parties. These provisions are severable and independent of all other provisions of the Agreement and each of these provisions will apply even if the warranties in the Agreement have failed in their essential purpose.

11. CONFIDENTIALITY; NON-COMPETE

  • Restricted Use and Nondisclosure. During and after the Term, Recipient: (a) will use the Confidential Information of the disclosing Party solely for the purpose for which it is provided; (b) will not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, service providers, auditors, attorneys, and consultants who are under confidentiality obligations at least as restrictive as those contained herein; and (c) will protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own, similar, Confidential Information.
  • Required Disclosure. If Recipient is required by legal process to disclose Confidential Information of the disclosing Party, Recipient will give prompt written notice to the disclosing Party before making the disclosure, unless prohibited from doing so by legal or administrative process and, as applicable, will cooperate with the disclosing Party’s attempt(s) to obtain an order protecting the Confidential Information from disclosure.
  • Ownership Recipient acknowledges that Confidential Information it receives from the disclosing Party, including any copies in Recipient’s possession or control, in any form of media, is, as between the Parties, proprietary to and exclusively owned by the disclosing Party. Nothing herein grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials does not render Confidential Information non-confidential.

 

  • Non-Compete and Non-Use. Client acknowledges and agrees that: (a) all of the processes, methods, plans, strategies, technologies, techniques, and/or algorithms used or generated for the BARK BOT Services, including the manner and techniques related to using and/or incorporating Third-Party Services (collectively, the “Proprietary Techniques”), are proprietary in nature, belong solely to BARK BOT, and shall constitute Confidential Information hereunder; (b) in disclosing such Proprietary Techniques to Client, BARK BOT is expressly relying on Client’s strict compliance with this Section 11.4 and Section 2.2 (collectively, the “Non-Compete Covenants”); and (c) BARK BOT has a protectable business interest in the Proprietary Techniques.  In addition to and in furtherance of all other provisions of the Agreement prohibiting Client’s unauthorized use and/or disclosure of the Confidential Information, including the Proprietary Techniques, Client agrees as follows:

 

11.4.1.          Client will not use or retain the Proprietary Techniques after expiration of the Term or earlier termination of the Agreement.

 

11.4.2.          Client will not disclose the Proprietary Techniques to any person or entity.

 

11.4.3.          Client will not directly or indirectly, either alone or in association with any other person or entity, own or hold any interest in, manage, operate, control, consult with, render services for, or in any manner participate in selling or providing services arising from or related to the Proprietary Techniques, either as a member, manager, general or limited partner, proprietor, shareholder, officer, director, agent, employee, consultant, trustee, affiliate or otherwise to market, solicit or otherwise engage in any business in connection with Proprietary Techniques, without the prior written consent of BARK BOT.

 

11.4.4           Client will not directly or indirectly, either alone or in association with any other person or entity, provide services that utilize or are based on the Proprietary Techniques to any person or entity

 

  • Remedies Any actual or threatened breach of this Section 11 (Confidentiality; Non-Compete) by Recipient may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. As such, the disclosing Party may seek equitable and/or injunctive relief in addition to any other remedies, to mitigate or prevent any breaches, threatened breaches or resultant damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 11 (Confidentiality; Non-Compete), has the burden of proof to show that the complained-of disclosure does not otherwise violate this Section 11 (Confidentiality; Non-Compete).

  • Remedies for Breach of Non-Compete Covenant. The Parties agree that if Client breaches the Non-Compete Covenants, actual damages would be impractical or extremely difficult to ascertain and determine, and damages will be determined by the following liquidated damage calculations:

 

  1. If Client breaches the Non-Compete Covenants, Client will pay to BARK BOT, within five (5) days of written notice from BARK BOT, liquidated damages in the amount of ten thousand dollars ($10,000) for each and every violation by Client, and ten thousand dollars ($10,000) for each and every person or entity that uses chatbots utilizing the Proprietary Techniques.

 

  1. To illustrate, if Client breaches the Non-Compete Covenants and as a result, (i) Client uses the Propriety Techniques after expiration of the Term to create or use a chatbot for its own use; (ii) discloses the Propriety Techniques to an affiliate; (iii) starts a new business with said affiliate that provides services using the Propriety Techniques; (iv) provides said services through the new business to twenty (20) customers, and (v) an employee of the new business creates and uses a chatbot utilizing the Proprietary Techniques for his or her own use, then BARK BOT shall be entitled to the following liquidated damages:

 

  • $10,000 for the violation described in 11.6.2(i);
  • $10,000 for the violation described in 11.6.2(ii);
  • $10,000 for the violation described in 11.6.2(iii);
  • $200,000 for the violations described in 11.6.2(iv); and
  • $10,000 for the violation described in 11.6.2(v).
  • No Waiver. Failure of BARK BOT to exercise any of its rights and remedies arising under this Section 11 shall not constitute a waiver of any provision of this Agreement, nor shall it prevent BARK BOT from exercising any rights or remedies with respect to the subsequent happening of the same or similar occurrences.
  • The provisions of this Section 11 shall survive termination of this MSA.

12. VENUE AND GOVERNING LAW

    • Jurisdiction and Venue. The Agreement will be interpreted, construed, and enforced in all respects is to be governed by the laws of the State of Arizona, United States of America, without reference to choice of law rules to the contrary. The Parties irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Yavapai County, Arizona, for the purposes of resolving any dispute arising out of the Agreement. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief any federal or state court of competent jurisdiction located in Yavapai County, Arizona to enforce injunctive or equitable relief to protect such Party’s intellectual property and/or confidentiality rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding relating to the Agreement.

     

    • Limitation of Action. Any legal action arising under the Agreement must be initiated within two years after the cause of action arises as a matter of contract, regardless of any statute of limitations.

     

    • Attorney Fees. The prevailing party in any action brought to enforce or interpret the terms of this Agreement shall be entitled to recover its reasonable attorney’s fees and court costs in such action, including on appeal.

13. GENERAL

Relationship

  • The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in the Agreement, nothing in the Agreement, expressed or implied, is intended to give rise to any third-party beneficiary status.

 

  • No employment. The Parties are independent contractors and nothing contained herein can be construed to convey employment status or rights upon any of the Parties or their employees, with the other Party.

 

  • Assignability.  Client may not assign its rights or obligations under the Agreement without BARK BOT’s prior written consent which may be withheld in BARK BOT’s sole and absolute discretion.

 

  • Notices. Any notice required or permitted by the Agreement will be effective only if it is in writing and sent using: (a) certified or registered mail; or (b) a nationally recognized overnight courier (UPS, FedEx, etc.), to the appropriate Party at the address set forth on the SOT, with a copy, in the case of BARK BOT, emailed to alert@barkbot.com. The Parties expressly consent to service of process by registered mail. If a Party changes its address for purposes of receipt of notice it must notify the other Party within ten (10) business days, otherwise notice will be deemed given if sent to the prior address then known to the notifying Party. Notices are deemed given upon four (4) business days following the date of mailing, or two (2) business day following delivery to a courier.

 

  • Force Majeure. Any cause that reasonably prevents a Party from performing its obligations herein that is beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, pandemic, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) will be designated a “Force Majeure Event”. The affected Party’s performance will be excused and the time for performance will be extended for the period of reasonable delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Notwithstanding the foregoing or anything to the contrary contained in the Agreement, timely compliance with monetary obligations may not be excused even if prevented by a Force Majeure Event.

 

Restrictions.

13.5.1      Each Party shall comply with all applicable export control and sanctions laws (“Trade Restrictions”) applicable to their performance of the Agreement. Nothing in this Agreement is intended to induce or require either Party to act in any manner which is penalized or prohibited under any applicable laws, rules, regulations or decrees.

 

13.5.2      Client acknowledges and agrees that it and any of Client’s Authorized Users are solely responsible for complying with any Trade Restrictions applicable to their use of BARK BOT’s Services.

 

  1. The Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations applicable to performance under the Agreement.

 

  • Publicity. Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the BARK BOT Services unless the prior written consent of the other Party has been obtained, provided, however, that BARK BOT may use Client’s name and logo for the limited purpose of identifying Client as a Client of BARK BOT.

 

  • Waiver.  The waiver by either Party of any breach of any provision of the Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.

 

  • Serverability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.

 

  • Entire Agreement. The Agreement is the final, complete, and exclusive expression of the agreement between the Parties. The Agreement supersedes and replaces, and the Parties disclaim any reliance upon, all previous oral and/or written communications, representations, understandings, and/or negotiations with respect to the Services contained in the SOT.

 

  • Modifications.  The Agreement may be changed only by a written agreement signed by an authorized agent of each Party. The Agreement will prevail over terms and conditions of any Client-issued ordering documents, which will have no force and effect, even if BARK BOT accepts or does not expressly reject Client’s issued ordering document.

 

  • Electronic Signature; Counterparts.  Each Party agrees to waive any claim or defense alleging that their electronic signature(s) hereto are legally insufficient to bind such Party. This Agreement may be executed in counterparts, and each such counterpart shall be deemed an original of this Agreement; and facsimile, PDF, and/or electronic counterpart signatures to this Agreement shall be acceptable and binding.

Terms and Conditions

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