MASTER SUBSCRIPTION AGREEMENT COVER SHEET
Version: February 9, 2023 (Global) rev 1
Introduction: Thank you for considering the purchase of Eightfold’s SaaS services based on its Talent Intelligence Platform and related modules (referred to as “Subscription Services” below). We have prepared this cover sheet to briefly introduce you to the nature of the Subscription Services and our rationale behind several legal provisions in the Master Subscription Agreement (MSA), to which this cover sheet is attached.
Background on our Services:
Eightfold’s Subscription Services run on a multi-tenant SaaS platform (i.e. one platform serving all Eightfold customers), hosted on the cloud via Amazon Web Services. We neither provide hardware nor on-premises software, and the Subscription Services are not embedded inside any of your own products or services. Your HR department users will log into our Subscription Services via standard web browsers to perform internal HR processes, such as recruiting external individuals and managing existing employees.
The Subscription Services are powered by artificial intelligence, which constantly learns and improves, and processes job descriptions and job candidates’ resumes to offer smart matching between available jobs and those candidates. Data processed is limited to professional job information, such as information typically found in resumes. We do not process highly sensitive personal information, including personal health information, biometric information (e.g. fingerprints), credit card numbers, or social security numbers.
To set up the Subscription Services, we offer professional services to configure the Subscription Services with your company’s preferences. We do not perform “work-for-hire” services, but rather platform configuration and integration of our platform with other tools and solutions that your company may use such as an Applicant Tracking System (ATS).
Because our Subscription Services run on the same platform in a multi-tenant manner, we cannot have customized license, ownership, availability, or support terms on a customer-by-customer basis. Further to this point, please see the underlying reasoning behind several legal provisions below.
Proprietary Rights (Section 4)
Eightfold, like other SaaS companies, needs to preserve its ownership of its platform and modules in order to provide the multi-tenant services to all its customers. The nature of our services is not amenable to separate out a piece for a customer to own. Our implementation services are for configuring our Subscription Services; our engagements are not done on a work-for-hire basis. Our services are powered by AI, which keeps improving and learning. While a customer unambiguously owns all rights to its own data brought to our services, in order to run the Subscription Services, our service requires rights to anonymize your data (the nature of which we described earlier) to train our AI that powers our platform. This nature of our platform benefits you as the customer as you directly get the benefit of anonymized learnings from a much larger set of companies.
Termination (Section 8)
This section allows each of us to end the contract due to material breaches of the other party. Our Subscription Services are sold for multi-year subscription terms. The nature of this commitment allows us to offer lower pricing, and helps us reserve resources to serve you. It is not business-conducive to have our customers terminate for convenience.
Liability (Section 11)
As standard in our industry, liability limits track the nature of our cloud-based multi-tenant SaaS services. The customer gets value-add for the service itself and by not investing in building the infrastructure, while enjoying periodic updates as well as secure measures based on state-of-art infrastructure for all customers. Our provision allows for unlimited liability for each party’s respective responsibilities (i.e. IP-infringement of our services, customer’s data and improper use of the services, and misappropriation of each other’s IP rights), while applying a reasonable liability cap for all other categories. For damages arising from breaches of data security and privacy obligations, which are intertwined, we provide for a higher cap. This cap is reasonable and commensurate with the commercial value of the contract, otherwise we would quickly run into outsized financial risks as a company, given the same platform runs for all customers. It is to the customer’s interest to support a profitable service provider that prudently manages financial risks. We welcome your inquiry on our data security practices to be comfortable with the cloud-based setup. Our relationships with our customers are generally long-term and the liability section is there to ensure we can serve and deliver business value to you over the long term.
Availability and Support (Exhibit A)
As mentioned above, because the Subscription Services are a multi-tenant SaaS solution, we have a common service availability program. Regarding availability, we maintain the following website to allow our customers to conveniently view and monitor platform availability: https://eightfold.statuspage.io/uptime.
Similarly, we have a common technical support program, which applies to all customers. Customizing the program would disrupt our operations and impact our abilities to allocate resources to serve you in turn. Maintaining a common support program is the best way to allow us to deliver best value to you as our customer.
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this “Agreement”) is entered into on [counterpartySignerDateField_UI4pQ4C] (the “Effective Date”) between Eightfold AI Inc. with its principal place of business at 2625 Augustine Drive, Suite 601, Santa Clara, CA 95054 (“Eightfold”), and [counterpartyName_W3CN6eJ]with its principal place of business at [counterpartyAddress_VyuMT0n] (“Customer”).
Background:
Eightfold provides a Software-As-A-Service (“SaaS”) platform that transforms how organizations hire and retain best talent. Customer desires to access and use the Eightfold platform services to augment its human resource practices.
In consideration of the mutual promises herein, the parties agree as follows:
- DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 “Affiliate” of a party means any entity that is controlled by a party to this Agreement, so long as the control exists. “Control” means direct or indirect control of more than 50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election or appointment of the corresponding managing authority).
1.2 “Authorized User” means employees or authorized contractors of Customer and its Affiliates that use the Services solely for the benefit of Customer as an end user in accordance with this Agreement.
1.3 “Customer Data” means information originating from Customer and entered or uploaded to the Services by Customer or its Authorized User.
1.4 “Documentation” means the specifications regarding the Services set forth in the applicable Sales Order and SOW.
1.5 “Intellectual Property” means any patent, copyright, trade name, trademark, trade secret, know-how, object code, source code, or any other intellectual property right or proprietary right whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
1.6 “Sales Order” means an Eightfold order form executed between the parties that specifies the fees, Subscription Term and other details of Subscription Services offered by Eightfold.
1.7 “Services” means the (a) subscription services and ongoing support offered by Eightfold on a SaaS basis set forth on the applicable Sales Order (“Subscription Services”) and (b) professional services set forth in the applicable SOW, including implementation services, individual training and/or other professional services (“Professional Services”).
1.8 “SOW” means a statement of work in a written order form executed between the parties that specifies the fees for, and the scope and other details, of Professional Services.
1.9 “Subscription Term” means the term of the Subscription Services in the applicable Sales Order.
2. SERVICES
2.1 Provision of Eightfold’s Subscription Services. Subject to the terms herein, Eightfold hereby grants a non-exclusive, non-transferable right for Customer’s Authorized Users to access and use the Subscription Services solely for Customer’s internal business purposes for the Subscription Term.
2.2 Data Security. Eightfold will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. The security program will be subject to periodic Service Organization Control 2 (SOC 2) audits or other similar independent third-party audits. Upon Customer’s request, Eightfold shall provide Customer with a copy of its then-current third-party audit report. In furtherance of the foregoing, Eightfold will maintain appropriate administrative, physical and technical safeguards that are designed to protect the security of Customer Data, including taking the security measures set forth in Exhibit B. Eightfold will not materially diminish such safeguards, when taken as a whole, during the term of this Agreement. To the extent that the parties will execute a Data Processing Addendum in connection with the Services (“DPA”) it will be incorporated herein by reference.
2.3 Support; SLA. During the applicable Subscription Term, Eightfold shall provide support for the Subscription Services to Customer in accordance with Eightfold’s then-current support level as identified in the applicable Sales Order and further described in Exhibit A. In the event that the level of support is not identified in the Sales Order, Customer shall receive the level of support that comes standard with the Subscription Services at no additional cost.
2.4 Professional Services. Any Professional Services to be performed by Eightfold shall be detailed in a SOW executed between the parties.
2.5 Restriction. Customer agrees that except as expressly permitted by this Agreement, it will not by itself, or through any third party, do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms of the Services, or any software, documentation, Intellectual Property, or data associated with the Services; (b) modify, translate, or create derivative works based on any software, documentation, Intellectual Property, or data associated with the Services; or (c) use the Services outside of the scope expressly permitted herein or for timesharing, service bureau purposes, sublicense, lease, sale transfer, or otherwise for the benefit of a third party.
2.6 Authorized Users. Customer may authorize certain contractors or certain employees of its Affiliates to be Authorized Users, provided that the Authorized Users are bound to abide by confidentiality, restriction, and usage responsibility terms at least as protective as what is set forth herein and that the Customer is responsible for all acts and omissions of such Authorized Users in connection herewith as if they were Customer hereunder. Customer shall not knowingly authorize any competitor of Eightfold to be an Authorized User. Customer shall notify Eightfold promptly upon becoming aware of any unauthorized access of the Services, including unauthorized use of Customer accounts.
3. RESPONSIBILITIES IN USING THE SERVICES
3.1 Compliance. Eightfold agrees to comply with all applicable laws and regulations in providing the Services to Customer. Customer agrees to use the Services only for their intended purposes and in compliance with all applicable laws and regulations, including any applicable obligations of providing sufficient data subject-related privacy notice and rights for its use of Eightfold’s Services.
3.2 Cooperation to Set Up Subscription Services. Customer agrees that it will cooperate with Eightfold as reasonably required to set up and integrate the Subscription Services, and after integration address any service or technical issues.
3.3 Equipment to Access Subscription Services. Customer shall be responsible for maintaining the security of any equipment used to access Subscription Services, and accounts, passwords and files for its use of the Subscription Services.
4. PROPRIETARY RIGHTS
4.1 As between Customer and Eightfold, Customer shall own and retain all rights, title and interest in and to the Customer Data. Customer represents that it has all necessary rights to upload the Customer Data for provision of the Services, and agrees that Eightfold may use the Customer Data to enable and improve Eightfold’s products and services, subject to the terms and conditions of this Agreement.
4.2 Subject to the license granted to Customer herein, Eightfold shall own and retain all rights, title and interest in and to the Services and Anonymized Learnings, as well as (a) its products, services, software, and related documentation, and all improvements, enhancements or modifications thereto, and (b) any software, technology, documentation, and Intellectual Property developed in connection with the Services. For the purposes hereof, “Anonymized Learnings” means data created from Customer Data that is anonymized in such a way that it does not identify Customer or any individual, for lawful business purposes, including, but not limited to, product improvement (in particular, training and developing machine learning algorithms), industry benchmarking, and analytics.
4.3 Customer may from time to time provide Eightfold suggestions for product enhancement or other feedback (“Feedback”) with respect to any Eightfold product or service. Eightfold will have full discretion to determine whether or not to proceed developing any requested enhancement and will have the full right, with no obligation of payment to Customer and no other restriction, to use and otherwise exploit any such Feedback during and after the term hereof. Customer has no obligation to provide Feedback.
5. PAYMENT OF FEES
5.1 Payment. Customer shall pay Eightfold the fees in accordance with the applicable Sales Order or SOW (the “Fees”). All Fees invoiced shall be non-refundable and non-cancellable, unless otherwise provided for herein. Payment shall be made in U.S. dollars, unless otherwise agreed with Eightfold. Full payment for all invoices is due and payable within the number of days as set forth in the Sales Order or SOW.
5.2 Dispute Procedure. If Customer believes that Eightfold has billed Customer incorrectly, Customer must contact Eightfold no later than the payment due-date for the applicable invoice as set forth in the Sales Order in order to receive an adjustment or credit, if applicable. The parties shall cooperate diligently in good faith to resolve such disputes.
5.3 Fees Are Exclusive of Tax. Eightfold’s Fees are exclusive of all sales, use, value-added, withholding and other taxes or duties, and Customer will promptly pay or reimburse Eightfold for all taxes arising out of this Agreement. Customer hereby confirms that Customer’s corporate address in the applicable Sales Order is the place of use for sales tax purposes, unless Customer provides, prior to invoicing by Eightfold a list of other places as being the places of use. If Customer is legally entitled to an exemption from the payment of any taxes, Customer will promptly provide Eightfold with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. If Customer is located outside the United States and required to pay or withhold any tax with respect to any payments due to Eightfold hereunder, Customer will gross up payments actually made such that Eightfold receives sums due hereunder in full and free of any deduction for any such tax.
6. CONFIDENTIALITY
6.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party) pursuant to this Agreement. Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential or proprietary as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Confidential Information includes, but is not limited to, non-public information regarding features, benchmarking, functionality and performance of the Services (including any screenshots thereof), documentation, formulas, designs, new products, developmental work, marketing plans, business plans and processes, names of actual and prospective customers, third-party audit reports, and the terms and pricing under this Agreement. Confidential Information of either Party will not include any information that (a) is or becomes generally available to the public through no act or omission of the other party, or (b) was in the other party’s lawful possession prior to receipt from the Disclosing Party and had not been obtained by the other party either directly or indirectly from the Disclosing Party, or (c) was lawfully disclosed to the other party by a third party without restriction on disclosure, or (d) was independently developed without use or reference to any Confidential Information of the Disclosing Party.
6.2 Receiving Party shall safeguard Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure using no less than a reasonable degree of care; shall use it solely for the purpose of this Agreement; and shall not disclose it to any third party except to its Affiliates or contractors who need to know such information for such purpose (and in the case of Eightfold, to its third party service providers for necessary performance of the Services), and agree to abide by the Agreement and whose breach of the Agreement is Receiving Party’s responsibility. The obligation of confidentiality shall survive expiration or termination of this Agreement.
6.3 If required by law or a valid court order to disclose any Confidential Information, Receiving Party shall: (a) only disclose the required portion of the Confidential Information; (b) use reasonable efforts to ensure that such disclosure is afforded confidential treatment, and (c) shall promptly notify and reasonably assist Disclosing Party so that Disclosing Party may seek a protective order or other remedy.
6.4 The Receiving Party acknowledges that the unauthorized disclosure or use of the other party’s Confidential Information may result in substantial and irreparable harm to the other party and that monetary damages will be difficult to determine and inadequate to compensate the other party. Therefore, the Receiving Party agrees that, upon any breach of the obligations in this section by the Receiving Party, the disclosing party shall be permitted to seek equitable relief such as an injunction, in addition to any other available remedies.
6.5 Upon expiration or termination of this Agreement or the applicable Sales Order, the Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in its possession or control promptly upon the written request of the Disclosing Party. The Receiving Party will certify in writing that it has complied with its obligations under this Section 6.5. Notwithstanding the foregoing, the Receiving Party may retain electronic backup copies of Confidential Information as part of the Receiving Party’s standard backup processes and systems. The Receiving Party shall comply with its obligations under this Agreement with regard to such copies and shall destroy them in accordance with Receiving Party’s normal destruction processes.
7. PUBLICITY AND MARKETING. Customer agrees that Eightfold may identify Customer as a customer of the Services on Eightfold’s websites and in its advertising and marketing materials, and grants to Eightfold the right to use Customer’s name and trademarks solely for the foregoing limited purpose. Subject to Customer’s prior review and consent, Eightfold may develop and publish case studies and/or press releases based upon Customer’s use of the Services and seek such prior review and consent from Customer before publication.
8. TERM AND TERMINATION
8.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the provisions of this Section 8. Each party may terminate this Agreement upon written notice to the other party if there are no Sales Orders or SOWs then in effect. Except as otherwise specified in a Sales Order, the term of each Sales Order will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the unexpired Subscription Term. The pricing during any renewal term is subject to change provided that notice of any such change is provided to Customer in writing at least forty-five (45) days prior to end of the then current Subscription Term.
8.2 Termination By Customer. Customer may terminate this Agreement or any relevant Sales Order or SOW associated thereto if Eightfold is in material breach and fails to cure such breach within thirty (30) days (or is incapable of curing such breach) following receipt of written notice describing the details of the breach. In the event of termination by Customer for Eightfold’s material breach, Customer shall only be liable for payment for Services through the termination date and shall receive from Eightfold a pro-rata refund of any prepaid Fees for any period of the Subscription Term beyond the termination date.
8.3 Termination By Eightfold. Eightfold may terminate this Agreement or any relevant Sales Order or SOW associated thereto if Customer is in material breach, which includes non-payment, and fails to cure such breach within thirty (30) days (or is incapable of curing such breach) following receipt of written notice describing the details of the breach. Eightfold further reserves the right to suspend any access to the Subscription Services based on activity that is disrupting or causing harm to Eightfold’s platform, systems, or infrastructure or for Customer’s non-payment of Fees. Customer shall not be entitled to a refund of any prepaid Fees for any period remaining in the Subscription Term in the event of termination by Eightfold for Customer’s material breach, or during any period of suspension.
8.4 Effect of Termination. Termination of this Agreement or any Sales Order or SOW shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all Fees that have accrued. Upon any termination of a Sales Order (including as a result of termination of this Agreement), Eightfold will make all Customer Data provided pursuant to such Sales Order available to Customer for electronic retrieval for a period of thirty (30) days upon Customer’s written request, but thereafter Eightfold may delete such Customer Data with or without Customer’s written request and will do so at Customer’s written request. Upon expiration or termination of this Agreement or the applicable Sales Order, Customer shall cease to use the applicable Services.
8.5 Survival. All terms of this Agreement, which by their nature are intended to survive the Agreement’s termination or expiration, will so survive, including confidentiality, usage restriction, proprietary rights, disclaimers, accrued indemnity, limitations of liability, and termination provisions.
9. WARRANTY AND DISCLAIMER
9.1 Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity; (b) it has the right, power and authority to enter the Agreement and to grant the rights granted hereunder and to perform all of its obligations hereunder; (c) the execution of any Sales Order or SOW incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by the Party to execute on behalf of the Party; and (d) any Sales Order or SOW incorporating this Agreement that is executed and delivered by both Parties will be valid and binding on the Parties.
9.2 Subscription Services. Eightfold represents and warrants that the Subscription Services will perform in accordance with the Documentation, in all material respects. Notwithstanding the foregoing, Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Eightfold or by third-party providers, or due to causes beyond Eightfold’s reasonable control. Eightfold shall use reasonable efforts to provide advance notice in the platform, on the website, or by email of any scheduled service disruption. However, Eightfold does not warrant that the Subscription Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Subscription Services.
9.3 Professional Service. Eightfold warrants to Customer that the Professional Services performed by Eightfold will be of a professional quality and conform to generally prevailing industry standards. Eightfold’s limited warranty shall expire 30 days after the applicable SOW milestone. Eightfold’s warranty shall only be effective if Customer notifies Eightfold of the breach of warranty within 30 days after the applicable SOW milestone. Eightfold’s sole and exclusive obligation for breach of warranty shall be, at Eightfold’s option, to (a) use commercially reasonable efforts to re-perform the nonconforming portion of the Professional Services in a manner that conforms with this limited warranty, or (b) refund to Customer the Fees paid by Customer to Eightfold for the nonconforming Professional Services under the applicable SOW.
9.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND EIGHTFOLD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. INDEMNITY
10.1 Subject to the terms herein, Eightfold will defend Customer against any action, proceeding, claim or suit (“Claim”) made or brought against Customer by a third party alleging that the Services infringe or misappropriate a patent, copyright or trade secret of the third party and will indemnify Customer against the applicable final judgments awarded (or a settlement approved by Eightfold) against Customer in connection with such Claim. This section states Customer’s sole and exclusive remedy with respect to infringement or misappropriation of Intellectual Property. Without limiting the foregoing, in the event that any portion of the Services are likely to, in Eightfold’s sole opinion, or does become the subject of such Claim, Eightfold may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Sales Orders or SOW and refund to Customer prepaid unused Fees for the infringing items.
10.2 The above defense and indemnification obligations by Eightfold do not apply to a Claim that arises from (a) compliance with designs, guidelines, plans or specifications provided by Customer; (b) use of the Services by Customer not in accordance with this Agreement; (c) Customer Data; or (d) the combination, operation or use of the Services with other products, services or materials not provided by Eightfold (clauses (a) through (d), “Excluded Claims”).
10.3 Subject to the terms herein, Customer will defend Eightfold against any Claim made or brought against Eightfold by a third party arising out of any Excluded Claims, and will indemnify Eightfold against the applicable final judgments awarded (or a settlement approved by Customer) against Eightfold in connection with such Claim.
10.4 The foregoing defense and indemnification obligations are conditioned on the party seeking indemnification (1) giving prompt written notice to the other party of the Claim, (2) giving the other party sole control for defense and settlement thereof, and (3) giving such assistance and information as the other party may reasonably require to defend or settle the Claim.
11. LIMITATION OF LIABILITY
11.1 NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE), INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, COST OF SUBSTITUTE SERVICE, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 SUBJECT TO SECTION 11.3 BELOW AND EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR AN AGGREGATE AMOUNT EXCEEDING THE FEES PAID OR PAYABLE BY CUSTOMER TO EIGHTFOLD UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO LIABILITY.
11.3 THE LIABILITY LIMITATIONS OF SECTION 11.2 SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR ANY VIOLATION OF SERVICE USAGE RESTRICTIONS; PROVIDED THAT EITHER PARTY’S AGGREGATE LIABILITY FOR BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS SHALL NOT EXCEED TWO TIMES (2X) THE FEES PAID OR PAYABLE IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
11.4 THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE A FUNDAMENTAL PART OF THE UNDERLYING ECONOMIC BARGAIN AND REPRESENT A REASONABLE ALLOCATION OF RISK, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICING AND OTHER TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
12. GENERAL PROVISIONS
12.1 Insurance. Eightfold shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) statutory Worker’s Compensation and Employer’s Liability as required by state law; (b) Commercial General Liability with coverage limits of a minimum per occurrence combined single limit of $1,000,000 and a minimum aggregate limit of $2,000,000; and (c) Professional Liability and Cyber Liability with coverage limits of a minimum per occurrence combined single limit of $1,000,000 and a minimum aggregate limit of $2,000,000.
12.2 Severability; Waiver; Entire Agreement. In the event that any provision contained in this Agreement is found by any competent authority to be unlawful, unenforceable or invalid to any extent, that provision, in whole or in part, shall to that extent be limited or severed from the remaining provisions which will otherwise continue to be valid and remain enforceable to the fullest extent permitted by law. This Agreement may be executed in counterparts, each of which so executed will be deemed to be original and such counterparts together will constitute one and the same agreement. This Agreement, including all exhibits and addendums (including any applicable Data Protection Addendum) are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by duly authorized representatives of both parties, specifically referencing this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any Sales Order or SOW, the Sales Order then the SOW will prevail and control. Preprinted or linked terms in Customer purchase orders or other customer-generated ordering documents have no effect on this Agreement. The parties do not intend to create in any other individual or entity the status of a third party beneficiary, and this Agreement shall not be construed so as to create such status. Customer acknowledges and agrees that a third party (including candidates) may elect to create accounts with Eightfold under applicable agreements, and that nothing contained herein will limit Eightfold’s rights thereunder in relation to such third parties. Each Sales Order and SOW will form a part of this Agreement and will be subject to the terms and conditions contained herein.
12.3 Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld, except that no consent shall be required for an assignment of this Agreement by Eightfold to a successor of substantially all of its assets or business related to this Agreement, provided that prior written notice is given and that the assignee shall agree in writing to assume all of the assignor’s obligations under this Agreement. Any attempted assignment in violation of this Section will be null and void. Subject to the foregoing, the Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
12.4 Force Majeure. Neither party shall be liable to the other for any failure or delay in performance of any of the obligations under this Agreement, arising out of any event or circumstance beyond the reasonable control of such party, including war, terrorist act, rebellion, civil commotion, fire, explosion, earthquake, and acts of God.
12.5 Subcontractors. Eightfold may use the services of subcontractors for performance of the Services under this Agreement, provided that Eightfold remains responsible for compliance of any such subcontractor with the terms of this Agreement, as well as all applicable laws. Eightfold will vet such subcontractors’ professional skills and data security practices and select appropriate subcontractors to fit the need and timing of the Services to Customer. If the applicable Services require performance of the Services at Customer’s premises, prior notice of subcontractor visits to Customer will be required and Eightfold will remain responsible for compliance with Customer’s reasonable safety standards and protocols as provided by Customer to Eightfold in writing.
12.6 Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall create an agency, partnership, joint venture, or employment relationship and neither party (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
12.7 Export Law Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services. Each party represents that it is not on any U.S. government list of persons or entities with whom U.S. persons are prohibited from transacting; nor owned or controlled by, or acting on behalf of or allowing the use of the Services by, any such persons or entities.
12.8 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes under this Agreement shall be resolved in the applicable state or federal courts in the Northern District of California. The parties consent to the jurisdiction of such courts for the purposes of this Agreement only.
12.9 Government Terms. Eightfold provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Services were developed fully at private expense.
12.10 Notice. Except as otherwise provided in this Agreement, each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement in writing and addressed to the other party at the applicable address set forth on the first page of this Agreement with attention to the receiving party’s Legal Department (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all notices by email, internationally recognized overnight courier (with all fees prepaid), or certified or registered U.S. mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements of this section. For any notice where Customer is the notifying party, Customer shall also provide a courtesy copy of such notice by email to Eightfold at legal@eightfold.ai.
This Agreement template was released as of February 9, 2023.
Exhibit A
Availability and Support
[TO BE PROVIDED AS PART OF CONTRACT NEGOTIATIONS]
Exhibit B
Eightfold has implemented technical and administrative safeguards to protect Customer Data against security incidents, which include the following security measures:
[TO BE PROVIDED AS PART OF CONTRACT NEGOTIATIONS]