Terms & Conditions
TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICE OFFERED BY 11X AI, INC. (“11X”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH 11X WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA 11X’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY 11X SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
RECITALS
WHEREAS, 11x provides the Service (defined below) to enterprise customers to augment their marketing efforts; and
WHEREAS, Customer desires to license from 11x the Service under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and of the performance of the mutual covenants herein, the parties agree as follows:
1. DEFINITIONS
1.1. “Admin User” means a Customer employee or contractor designated with administrative privileges to manage Customer’s account at the organization level, including provisioning Authorized Users and other configuration settings described in the Documentation.
1.2. “Applicable Laws” means all applicable laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States applicable to (a) the access and processing of Personal Data and, (b) marketing and solicitation of individuals, including without limitation, the EU GDPR, the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, the Telephone Consumer Protection Act, CAN-SPAM Act, and the California Consumer Privacy Act.
1.3. “Authorized Users” means Customer's employees, consultants, and contractors authorized to access and use the Service.
1.4. “Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is publicly available through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Customer Data and User Content is Customer’s Confidential Information. All software, hardware, Documentation, and other information provided by 11x as part of the Service is 11x’s Confidential Information.
1.1. “Credits” means the pre-paid credits purchased by Customer using the Order Form, that are linked to Authorized Users’ accounts, for access to the Service.
1.2. “Customer Data” means (a) all Customer-provided data and/or information provided to 11x by or on behalf of Customer, including Credits purchased and any data sets provided to 11x; and (b) User Content.
1.5. “Documentation” means electronic or hardcopy manuals, designs, drawings, specifications, datasheets, slide decks or documents received from 11x in connection with the Service under this Agreement.
1.6. “DPA” means the Data Processing Terms between 11x and Customer, hereby incorporated by reference and attached as Exhibit A.
1.7. “EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.8. “Feedback” means any suggestions, comments or other feedback provided by Customer to 11x, and relating to the Service.
1.9. “Order Form” means an order form executed by Customer and 11x for the purchase of the Service, which is incorporated by reference.
1.10. “Performance Data” means data generated and/or collected in connection with Customer’s use of the Service, such as logs, session data, support data, usage data, statistics, aggregated data, and derivatives thereof.
1.11. “Personal Data” means the meaning given to it in the DPA.
1.12. “Service” means the artificial intelligence-powered digital workers (“Alice” and “Julian”) for marketing by email or phone, made available to Customer through the 11x platform.
1.13. “User Content” means the content created by Customer for use by the Service for marketing outreach.
2. LICENSE; RESTRICTIONS; DATA PROCESSING
2.1. License. Subject to Customer’s compliance with this Agreement and payment of all applicable fees, 11x grants to Customer a non-exclusive, non-transferable, non-sublicensable, license (a) to access and use the Service in accordance with the terms of the Order Form and the Documentation and for Customer’s internal business purposes; and (b) to make a reasonable number of copies of the Documentation solely in connection with using the Service.
2.2. Restrictions. Customer agrees not to, and will not allow any third party, to:
2.2.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
2.2.2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
2.2.3. upload or distribute any User Content that is unlawful;
2.2.4. access the Service for purposes of developing a similar or competing product;
2.2.5. remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof;
2.2.6. reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available;
2.2.7. rent, resell or otherwise allow any third-party access to or use of the Service;
2.2.8. use, inspect, analyze, or otherwise exploit the Service outside the scope of the express license granted in Section 2.1; or
2.2.9. use the Service in violation of the Documentation.
2.3. Data Processing. Any Personal Data will be processed in accordance with Applicable Laws and as described in the DPA.
3. OWNERSHIP
3.1. Proprietary Rights. As between the parties, 11x or its licensors exclusively owns all right, title, and interest in and to the Service and Documentation, and any software or other intellectual property created, used, provided or made available by 11x under or in connection with the Service, and Customer exclusively owns all right, title and interest in and to the Customer Data and Performance Data. 11x shall acquire no rights in or to the Customer Data or Performance Data, except for the license rights to 11x set forth in Section 3.2.
3.2. License to 11x.
3.2.1. Performance Data. Customer hereby grants 11x a limited license to aggregate, collect, analyze, and store Performance Data (a) to provide, maintain, and improve the Service, and (b) in aggregated, de-identified form for 11x’s marketing purposes. For clarity, any Performance Data used for marketing purposes will not identify Customer.
3.2.2. Customer Data. Customer hereby grants 11x a limited license to collect, store, and use Customer Data to provide, maintain, and improve the Service.
3.2.3. Feedback. Customer has no obligation to disclose to 11x any Feedback. However, if Customer discloses Feedback to 11x, Customer shall grant, and hereby does grant, to 11x a non-exclusive, worldwide, non-terminable, royalty-free, transferable, sublicensable license to use, reproduce, prepare derivative works of, make, have made, import, offer for sale, sell, lease, distribute, publicly display, publicly perform, and otherwise exploit such intellectual property rights in or to any such Feedback in or with any 11x products or technology.
4. FEES, PAYMENT
4.1. Fees. Upon execution of this Agreement, 11x will invoice Customer for access to the Service, which includes a mutually agreed number of Credits, at the frequency described in the Order Form. All Credits purchases are non-refundable. 11x will invoice Customer in advance quarterly for recurring fees.
4.2. Overages. 11x provides notification to Authorized Users when their Credits balance is running low and does not allow further use of the Service when Customer’s Credits balance is zero. Additional Credits may be purchased via Order Form, and once processed, the new Credits balance will be available on the Admin User’s account dashboard.
4.3. Payment. Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
4.4. Late Payment. 11x may suspend access to the Service immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If 11x has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by 11x.
4.5. Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated. Customer will be solely responsible for payment of all applicable taxes or duties, except for those taxes based on the income of 11x. Customer will not withhold any taxes from any amounts due to 11x.
5. TERM, TERMINATION
5.1. Term and Renewal. The term of this Agreement begins on the Effective Date and will remain in effect for the term described in the Order Form.
5.2. Termination. Each party may terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. Any violation Section 2 is considered a material breach and subject to immediate termination of the Agreement in 11x’s sole discretion.
5.3. Post-Termination Obligations. Following any termination of the Agreement, each party will (a) immediately cease use of any Confidential Information of the other communicated for the purposes of this Agreement, and (b) upon the disclosing party’s request, within seven (7) days, return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed under the Agreement, subject to each party’s customary backup and archival processes, and (c) Customer shall immediately cease using the Service.
5.4. Survival. Sections 1, 3.1, 4 (solely as to any outstanding fees), 5.3, 5.4, 6, 8, 9, and 10 will survive termination or expiration of the Agreement.
6. CONFIDENTIALITY
6.1. Confidentiality Obligations. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law, in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with prompt written notice and reasonable assistance to allow the disclosing party to seek a protective order or other appropriate remedy, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 6, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6.2. Equitable Relief. Customer and 11x acknowledge that damages will be an inadequate remedy if the other party violates the Agreement pertaining to the protection of a party’s intellectual property rights and Confidential Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to seek in any court of competent jurisdiction, temporary, preliminary, and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
7. WARRANTIES
7.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2. Customer Warranties. Customer represents and warrants to 11x that: (a) it has all rights or consents necessary to provide Customer Data to 11x under this Agreement; (b) it has obtained all consents necessary to contact individuals through the Service for marketing purposes; and (c) it will comply with all Applicable Laws in using the Service.
7.3. 11x Warranties. 11x represents and warrants to Customer that the Service, when used by Customer in accordance with the permitted uses in this Agreement and the Documentation, will function as described in the Documentation and the DPA, during the Term.
7.4. Exclusive Remedy. Customer shall report to 11x, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 7. In the event of a breach of warranty by 11x under this Agreement, Customer’s sole and exclusive remedy, and 11x’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business, or if 11x cannot repair such deficient Service as warranted within sixty (60) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form for the Service and recover from 11x a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.
7.5. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, 11X MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. 11X EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. 11X DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE COMPLETELY SECURE OR UNINTERRUPTED, THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE, OR THAT ANY INDIVIDUALS CONTACTED THROUGH THE SERVICE WILL RESPOND TO, OR RESULT IN ANY SALES TO, CUSTOMER.
8. INDEMNITY
8.1. Indemnity by 11x. 11x will defend, indemnify, and hold harmless Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates a patent, copyright or trade secret of a third party. If the use of the Service by Customer has become, or in 11x’s opinion is likely to become, the subject of any Claim of infringement, 11x may at its option and expense (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing (with comparable functionality); or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable term.
8.1.1. Excluded Claims. 11x will have no liability or obligation with respect to any Claim for intellectual property infringement or misappropriation if such Claim is caused in whole or in part by (a) compliance with designs, guidelines, plans or specifications provided by Customer; (b) use of the Service by Customer not in accordance with this Agreement; (c) modification of the Service by or on behalf of Customer; (d) Customer Confidential Information, or (e) the combination, operation or use of the Service with other products or services where the Service would not by itself be infringing (clauses (a) through (e), “Excluded Claims”). This Section states 11x’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any Claim of any nature related to infringement or misappropriation of intellectual property.
8.2. Indemnification by Customer. Customer will defend, indemnify, and hold harmless 11x against any Claim made or brought against 11x by a third party arising out of (a) the Excluded Claims; (b) 11x’s authorized use of Customer Data as permitted hereunder; (c) User Content; and (d) any violation of Applicable Laws.
8.3. Notice and Procedure. In the event of a Claim for which a party seeks indemnity under this Section 8 (each an “Indemnified Party”), (a) the Indemnified Party shall promptly notify the other party (“Indemnifying Party”) of such Claim, (b) the Indemnifying Party will have the sole and exclusive authority to defend and/or settle any such Claim (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases the Indemnified Party of all related liability) and (c) the Indemnified Party reasonably cooperates with the Indemnifying Party in connection therewith.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR CLAIMS OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO 11X UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS. .
10. MISCELLANEOUS
10.1. Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of laws principles. In the event of any controversy or claim arising out of or relating to this Agreement, or its breach or interpretation, the parties will submit to the exclusive jurisdiction of and venue in San Francisco County, California. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum.
10.2. Publicity; References. Customer agrees that 11x may refer to Customer’s name and trademarks on 11x’s website, subject to Customer’s trademark guidelines provided from time to time; however, 11x will not use Customer’s name or trademarks in any other publicity (e.g., press releases and customer references) without Customer’s prior written consent (which may be by email).
10.3. Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.4. Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
10.5. Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
10.6. Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.
10.7. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, provided, however, either party may assign this Agreement to any entity into or with which it is merged, or that acquires all or substantially all of its assets, without requiring consent. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
10.8. Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to 11x, in English to [email protected]. 11x may send notices to the email addresses on Customer’s account or, at 11x’s option, to Customer’s last-known postal address. 11x may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of the notice on the Service. Each party consents to receiving electronic notices. 11x is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
10.9. Subcontractors. 11x may use subcontractors and permit them to exercise the rights granted to 11x in order to provide the Service and related services under this Agreement. These subcontractors may include, for example, 11x’s hosting providers. However, subject to all terms and conditions of this Agreement, 11x will remain responsible for: (a) compliance of its subcontractors with the terms of this Agreement; and (b) the overall performance of the Service if and as required under this Agreement.
10.10. Entire Terms; Amendments. This Agreement and all attached exhibits and orders hereto constitute the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. Any additional, supplementary, or conflicting terms supplied by either party, including those contained on or within any invoice, purchase order, or standard terms of purchase, or any click through license terms or terms of use, are specifically and expressly rejected by each party.
10.11. Counterparts. Order Forms and any amendments to this Agreement may be executed in one or more counterparts, which taken together will constitute a single agreement between the parties.