Effective date: 14 July 2020 Thank you for using OTO products, services and applications (the “Services”). Please read these Terms and Conditions (also referred as “Terms”) carefully before using our Services.
1. Acknowledgement.
These are the Terms and Conditions governing the use of this Services and the agreement that operates between You (“Customer”) and OTO Systems Inc. (“OTO”) (Each of OTO and Customer, a “Party”, and collectively the “Parties”). These Terms and Conditions set out the rights and obligations of all users regarding the use of the Services. Your access to and use of the Services is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Services. By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions, then You may not access the Services.
You represent that you are over the age of 18. OTO does not permit those under 18 to use the Services.
Your access to and use of the Services is also conditioned on Your acceptance of and compliance with the Privacy Policy of OTO. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Services and tells You about Your privacy rights and how the law protects You. Please read Our Privacy Policy carefully before using the Services.
2. Customer Obligations
(a) Customer shall use the OTO Software and Updates thereto in compliance with all applicable laws, statutes, rules and regulations. Upon written notice to Customer, OTO may modify or suspend Customer’s access to the OTO Software as necessary to comply with any law or regulation or for Customer’s violation of the terms of this Agreement. The OTO Software is not intended for use in any nuclear, aviation, mass transit, medical or life support application or in any other inherently dangerous application. Customer is responsible for taking all appropriate measures to ensure the safe use of the OTO Software if used for such purposes and OTO shall not be liable for any claims or damages arising from such use.
(b) Customer hereby grants to OTO, a royalty-free, perpetual, sublicenseable, irrevocable, and worldwide license to use, copy, modify, and display the Customer provided data (“Data”) as necessary for OTO to provide the Services under this Agreement. Customer understands and agrees that OTO may continue to use such Data as necessary to develop and improve its Services.
(c) Customer hereby agrees that OTO retains all rights to aggregated anonymous data derived from Customer’s use of the OTO Software, with the understanding that such aggregated data will not be identifiable as belonging to, or emanating from, Customer. Customer hereby grants OTO a non-exclusive, irrevocable, perpetual, worldwide right to use for any purpose the results of the analysis provided by the OTO Software (such results will not include audio or Personal Data).
3. Limited Warranties and Disclaimer
(a) Authority. Each Party represents and warrants that it has full power and authority to enter into this Agreement and convey the rights conveyed herein. Each Party further represents that it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or render it incapable of satisfactorily performing hereunder.
(b) Disclaimer.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, OTO MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE OTO SOFTWARE OR DOCUMENTATION AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THE OTO SOFTWARE, UPDATES OR UPGRADES THERETO, CORRECTIONS THERETO, DOCUMENTATION OR THE SERVICES ARE PROVIDED “AS-IS”. FURTHER, OTO DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE OTO SOFTWARE, UPDATES THERETO, OR DOCUMENTATION OR ANY INFORMATION CONTAINED THEREIN OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, OR THAT THE OTO SOFTWARE OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE USE OF THE OTO SOFTWARE OR DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, OTO SPECIFICALLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED HEREIN AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCE SHALL OTO BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM MISUSE, ABUSE OR COMPUTER OR ELECTRICAL MALFUNCTION, OR IF THE OTO SOFTWARE HAS BEEN INSTALLED, USED, MODIFIED OR OPERATED OTHER THAN IN ACCORDANCE WITH INSTRUCTIONS FURNISHED BY OTO OR OTHER THAN AS PERMITTED BY THIS AGREEMENT. NO OTO AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT.
4. Indemnification
(a) Customer’s Indemnity.Subject to Section 4(b), Customer will indemnify, defend and hold OTO harmless from any third party claim or action against OTO to the extent such suit or action is based on a claim arising out of the use of the OTO Software: (I) in any manner for which the OTO Software was not designed; (II) that has been modified by Customer or any third party; (III) in connection with or in combination with any product, device or software that has not been supplied or approved by OTO; (IV) other than in compliance with this Agreement; or (V) use in a manner that is not reasonably foreseeable and, including without limitation, claims arising in contract or tort, and Customer’s negligent conduct or intentional misconduct, except for claims resulting from OTO’s gross negligence or intentional misconduct, and Customer will pay those damages and costs finally awarded against OTO in any monetary settlement of such suit or action which are specifically attributable to such claims.
(b) Indemnification Procedure. The Parties’ indemnification obligations under this Section 4 are contingent upon: (i) the indemnified Party giving prompt (in no event less than thirty days after its receipt of written notice of the claim) written notice to the indemnifying Party of any claim under this Section; (ii) the indemnifying Party having the right, but not the obligation, to assume sole control of the defense or settlement of the claim, and (iii) at the indemnifying Party’s request and expense, the indemnified Party cooperating in the investigation and defense of such claim(s). If the indemnifying Party assumes the defense of any claim hereunder, the indemnified Party will be entitled to participate in (but not control) such defense and to retain its own counsel, at its own expense. The indemnifying Party may not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party, unless it unconditionally releases the indemnified Party of all liability.
5. Limitation of Liability
(a)IN NO EVENT WILL OTO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CLAIMS ASSERTING OR BASED ON THE USE, INABILITY TO USE, LOSS, INTERRUPTION OR DELAY OF THE OTO SOFTWARE. IN NO EVENT WILL OTO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CLAIMS ASSERTING OR BASED ON, LOSS OF USE OF FACILITY OR EQUIPMENT, LOST BUSINESS, REVENUES OR PROFITS, LOSS OF GOODWILL, FAILURE TO ACHIEVE COST SAVINGS, FAILURE OR INCREASED COST OF OPERATIONS, LOSS, DAMAGE OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SERVICE FAILURE, MALFUNCTION, DOWNTIME, SHUTDOWN, SERVICE INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION OR BREACHES IN SYSTEM SECURITY.
(b) EXCEPT WITH RESPECT TO DAMAGES ARISING FROM EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER AND DAMAGES ARISING FROM OR RELATING TO CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF THE OTO SOFTWARE BEYOND THE SCOPE OF RIGHTS GRANTED UNDER THIS AGREEMENT, IN NO EVENT WILL (i) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER; AND (ii) OTO’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE SIX MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL OTO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT. THE LIMITATIONS IN (i) AND (ii) WILL APPLY EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
6. General
(a) Export.The provision of the OTO Software may be subject to export laws and regulations. Customer agrees to comply with any export laws and regulations of the United States or any other jurisdiction that may apply. Customer hereby represents and warrants that it is not a Restricted Person. For purposes of this Agreement, a "Restricted Person" is any person or entity, or any officer, director, or controlling shareholder of an entity, that is (i) a national of or an entity existing under the laws of Cuba, Iran, Sudan, North Korea, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (ii) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (iii) listed on the Denied Persons list or Entity List by the U.S. Commerce Department; (iv) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (v) owned, controlled, or acting on behalf of any person or entity described under the foregoing (i) through (iv).
(b) Assignment. Customer may not assign, transfer, or sublicense any of its rights, obligations, or benefits under this Agreement without the prior written consent of OTO. A Change of Control of Customer shall be deemed an assignment under this Section. Except as otherwise provided herein, this Agreement will be binding on and inure to the benefit of the respective successors and permitted assigns of the Parties. Any attempted assignment in violation of this Agreement will be void and without effect.
(c) Attorney’s Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which the Party may be entitled. Attorney fees cannot exceed the amount of the judgement.
(d) Notices. All notices under this Agreement must be in writing, and will be deemed given when personally delivered (with written confirmation of receipt), when mailed by prepaid certified or registered U.S. mail (return receipt requested, postage prepaid), when sent by commercial overnight courier service with tracking capabilities (receipt requested), by facsimile (if confirmed by one of the other methods permitted hereunder within forty- eight hours after such facsimile transmission), or by email to the respective addressee of each Party, or such other address, facsimile number or email as such Party last provided to the other Party by written notice.
(e) Waiver. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.Amendments. No changes or modifications to or waivers of any provision of this Agreement will be effective unless evidenced in a written amendment.
(f) Amendments. No changes or modifications to or waivers of any provision of this Agreement will be effective unless evidenced in a written amendment.
(g) Severability. In the event that any provision of this Agreement is determined to be illegal or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of New York without regard to the conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter of this Agreement will be the state and federal courts located in New York. Notwithstanding the foregoing, either Party will at all times have the right to seek interim injunctive relief in any court of competent jurisdiction. The Parties agree that, to the extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods, or similar consumer protection legislation worldwide, do not apply in any respect to this Agreement.
(i) Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.
(j) IndependentContractor. The relationship of OTO and Customer established by this Agreement is that of independent contractor, and nothing contained in this Agreement will be construed (i) to give either Party the power to direct or control the day-to-day activities of the other; or (ii) to constitute the Parties as partners, franchisee-franchiser, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or otherwise give rise to fiduciary obligations between the Parties.
(k) Force Majeure. A Party will not be liable for nonperformance or delay in performance (other than of obligations regarding payment of money or confidentiality) caused by any event reasonably beyond the control of such party including, but not limited to, wars, hostilities, revolutions, riots, civil commotion, national emergency, strikes, lockouts, unavailability of supplies, epidemics, pandemics, public health emergency, quarantine restriction, fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, internet, electric power or communications outage, or any law, proclamation, regulation, ordinance of any court, government or governmental agency.
(l) Entire Agreement. This Agreement, including all documents referenced hereto, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all proposals, oral or written, all negotiations, conversations, discussions or agreements between the Parties relating to the subject matter.
(m) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
7. Definitions
(a) "Affiliate"of an entity means any company that controls, is controlled by or is under common control with such entity, where "control" means beneficial ownership (direct or indirect) of at least fifty percent (50%) of the shares of such entity entitled to vote in the election of directors (or in the case of an entity that is not a corporation, for the election of the corresponding managing authority).
(b) "Change of Control"means (i) the consolidation or merger of a Party with or into any other person or entity; (ii) the sale, transfer or other disposition of all or substantially all of the assets of a Party; or (iii) the acquisition of a Party by any person or entity of (A) beneficial ownership of securities of a Party representing more than fifty percent of the common stock of such Party or representing more than fifty percent of the combined voting power with respect to the election of directors (or members of any other governing body) of such Party, (B) the right or ability to appoint a majority of such Party’s board of directors (or other governing body), or (C) the right or ability to direct the operations or management of such Party or any successor to such Party.
(c) “OTO”(also referred to as “Company”, "the Company", "We", "Us" or "Our" in this Terms and Conditions) refers to OTO Systems Inc., 954 Lexington Ave. #1028, NY 10021, USA
(d) “Documentation” means the user guides and other information provided by OTO to Customer to use in connection with the OTO Software.
(e) “OTO Analysis Module” means OTO’s proprietary software and artificial intelligence models that enables OTO to analyze any type of human conversations.
(f) “OTO Software” means the OTO proprietary software that is integrated into the Customer’s applications and operates in conjunction with the OTO Analysis Module.
(g)“Personal Data” means any information that relates to an identified or identifiable individual or device data or that identifies or can be used to identify individuals either alone or in combination with other information, including name, street address, telephone number, email address, user name and password, photograph, government-issued identifier (including Social Security number, tax identification number, driver’s license number, or passport number), credit card number, bank information, or customer or account number, biometric identifiers or any other piece of information used or intended to be used to identify, contact, or precisely locate an individual.
(h) “Services” means the software, services and applications provided by OTO including OTO Analysis Module and OTO Software.
(i) “Updates” means a new release of the applicable software or other deliverable provided hereunder consisting of a bug fix, workaround, or patch to correct any reproducible error in such software for which the number to the right of the decimal point is increased.
(j) “You” (also referred to as “Customer” in this Terms and Conditions) means the individual accessing or using the Services, or the company, or other legal entity on behalf of which such individual is accessing or using the Services, as applicable.
