This Master Subscription Agreement (“MSA”) is between The Prompt Group Ltd., a corporation incorporated under the laws of Canada, with its registered office at 1 Yorkville Avenue, Toronto, Ontario M4W 0B1 (“Provider”) and the entity identified as “Customer” in the order form executed by Provider and Customer or the order confirmation email from Provider (the “Order” and together with the MSA, the “Agreement”), in each case referencing this MSA. Provider and Customer are each a “Party” and, collectively, the “Parties.” Capitalized terms used but not defined in this Agreement will have the meanings set forth in the Order. The Parties hereto agree as follows:
1Overview
Subject to Customer’s payment of Fees and the terms and conditions of this Agreement, Provider will provide the software, data processing, analytics, content generation, content publication, data integration, data collection, knowledge-base, reporting, and related technology-enabled services identified in the applicable Order, whether delivered through a hosted software-as-a-service platform, Provider-operated data pipeline or warehouse, APIs, integrations, managed services, or any other delivery method used by Provider from time to time (each individually, a “Service” and, collectively, the “Services”). The Services may include analysis of third-party artificial intelligence platforms (“AI Platforms”) treatment of specified products, services, and brand assets, prompt analytics, integration and analytics with web logging platforms, generation and publication of content for consumption by large language models or other audiences, collection and organization of Customer-authorized data, and other features identified in the applicable Order. Use of the Services may be subject to limitations described in the applicable Order. For clarity, a change in the technical architecture, hosting environment, data pipeline, warehouse, interface, or delivery method used by Provider to perform substantially the same Services does not require an amendment to this Agreement.
2Services
2.1Ordering Process; Agreement
Subscriptions to Services are purchased pursuant to the Order. The Order will identify the Services to which Customer is subscribing and, as applicable, the number of queries permitted, limitations around the structure or scope of data to be returned in response to queries, and the time period for which such Order applies.
2.2Access Grant
During the Term, subject to Customer’s compliance with this Agreement, Customer may access and use the Services and Service Content for Customer’s internal business purposes and, to the extent expressly contemplated by an Order, for Customer’s external publishing, marketing, communications, knowledge-management, or other business purposes. “Service Content” means the reports, information, content, insights, recommendations, drafts, and other materials made available or delivered by Provider through the Services from time to time.
2.3Documentation Licence
Subject to the terms and conditions contained in this Agreement, Provider grants Customer a non-exclusive, non-sublicensable, non-transferable license to use any end user documentation (“Documentation”) relating to the Services and made available by Provider during the Term solely in connection with Customer’s use of the Services.
2.4Users
“User” means an employee or contractor of Customer that Customer allows to use the applicable Provider Technology on Customer’s behalf, using the mechanisms designated by Provider (“Log-in Credentials”). Provider shall not permit the total number of Users who have accessed or used the Provider Technology (as defined below) during the Term (as defined below) to exceed the maximum User quantity specified in the applicable Order. Customer will not make available the Provider Technology to any person or entity other than Users. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through a User’s Log-in Credentials (excluding misuse of the Log-in Credentials caused by Provider’s breach of this Agreement). Customer will promptly notify Provider if it becomes aware of any compromise of any Log-in Credentials. Provider may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (“Process”) Log-in Credentials in connection with Provider’s provision of the Services or for Provider’s internal business purposes.
2.5Restrictions
Customer will not (and will not permit anyone else to, including its Users), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Services, Service Content, or related content or technology provided by or on behalf of Provider (collectively, “Provider Technology”) to a third party (other than Users); (b) use the Provider Technology to develop a similar or competing product or service or to provide products or services to a third party; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public application programing interfaces (APIs) to the Provider Technology, except to the extent such a restriction is not permitted under applicable Law (as defined below) (and then only with prior notice to Provider); (d) modify or create derivative works of the Provider Technology or copy any element of the Provider Technology; (e) remove or obscure any proprietary notices in the Provider Technology; (f) publish benchmarks or performance information about the Provider Technology; (g) interfere with the operation of the Provider Technology, circumvent any access restrictions, or conduct any security or vulnerability test of the Provider Technology; (h) transmit any viruses or other harmful materials to the Provider Technology; (i) use the Provider Technology to take any action that risks harm to others; (j) intentionally harm the security, availability, or integrity of the Provider Technology; or (k) access or use the Provider Technology in a manner that violates any relevant local, provincial, territorial, federal or international laws, regulations, caselaw, or conventions, including those related to data privacy or data transfer, international communications, or export of data (“Law”).
2.6Customer-Authorized Publishing
Where an Order includes content publication or distribution services, Customer authorizes Provider, during the Term and solely to provide the applicable Services, to prepare, adapt, upload, post, publish, distribute, update, or remove content on Customer’s behalf (collectively, “Published Content”) on websites, applications, social-media accounts, content-management systems, AI Platforms, directories, repositories, or other properties owned or controlled by Customer, and on third-party platforms or sources specifically identified or otherwise authorized by Customer (“Publication Channels”). Provider will not publish Published Content unless Customer has approved the applicable content and Publication Channel in writing (including email), through an approval workflow made available by Provider, or by another approval method specified in the applicable Order. Silence or failure to respond will not constitute approval unless the applicable Order expressly provides for a deemed-approval process and the applicable response period. Customer may revoke an approval before publication by written notice where reasonably practicable. Customer grants Provider a non-exclusive, worldwide, royalty-free licence during the Term to use, reproduce, modify, adapt, format, display, distribute, and otherwise use Customer Data and Customer-provided trademarks, logos, and other materials solely as necessary to create and publish the Published Content. As between the Parties, Customer owns the Published Content upon creation, excluding Provider Technology, Provider’s pre-existing materials, Aggregated Statistics, and third-party materials. To the extent any Provider-owned materials are incorporated into Published Content, Provider grants Customer a perpetual, worldwide, non-exclusive, royalty-free licence to use those incorporated materials as part of the Published Content. Customer represents and warrants that it has all rights, permissions, credentials, consents, and authority necessary to authorize Provider to access and use each Publication Channel and any Customer-directed third-party materials or sources, and that Provider’s authorized publication of approved Published Content will not violate applicable Law, third-party rights, or applicable platform terms. Provider is not responsible for changes made to Published Content after publication by Customer or a third party, or for a Publication Channel’s moderation, removal, ranking, availability, or other acts or omissions.
3Service Levels
During the Term, Provider will offer the Services to Customer in accordance with Provider’s then-current Service Level Agreement located at https://agreement.thepromptgroup.com/sla, as may be updated from time to time.
4Data
4.1Retention of Rights
Neither Party grants the other any rights or licences not expressly set out in this Agreement. Without limiting the foregoing, except for the limited rights and licences granted in this Agreement, (a) Customer retains all of its rights in and to the Customer Data and Published Content, subject to Section 2.6, and (b) Provider and its licensors retain all of their rights in and to the Provider Technology. “Provider Technology” means the Services, Service Content, Documentation, Provider’s software, pipelines, workflows, models, prompts, schemas, data structures, methodologies, tools, systems, know-how, and other technology or materials provided or used by or on behalf of Provider, in each case excluding Customer Data and Published Content owned by Customer under Section 2.6.
4.2Use of Customer Data
“Customer Data” means any data, content, materials, records, credentials, files, information, or other materials that (i) Customer or its Users inputs, uploads, submits, provides, or otherwise makes available to Provider; or (ii) Provider accesses, retrieves, collects, copies, receives, or generates from Customer Systems, Third-Party Platforms, Publication Channels, or other sources at Customer’s direction or with Customer’s authorization in connection with the Services, including data retained in any Customer-specific knowledge base or data warehouse maintained by or for Provider. Customer hereby grants Provider a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors, subprocessors, and service providers), non-transferable (except as set forth in Section 18.1) right to access, collect, retrieve, use, copy, store, disclose, transmit, transfer, display, modify, create derivative works from, and otherwise Process Customer Data solely as necessary: (a) to provide, operate, support, secure, and improve the Services for Customer and otherwise perform Provider’s obligations under this Agreement; (b) to create and maintain Customer-specific knowledge bases, indexes, embeddings, data stores, and other derived representations used solely to provide the Services to Customer; (c) to derive, generate, and use Aggregated Statistics; or (d) to comply with applicable Laws. Provider does not use Customer Data in identifiable form to train or fine-tune any artificial intelligence or machine learning models. Provider may use data derived from Customer Data to train or fine-tune such models only after that data has been de-identified so that it cannot reasonably be used to identify Customer or any individual, and Provider will not attempt to re-identify such data.
4.3Aggregated Statistics
Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile data and information related to Customer and its Users’ use of the Services (“Aggregated Statistics”) to be used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, enhancement, optimization, and operation of the Services. Aggregated Statistics shall not include Personal Information and, to the extent they result in whole or in part from anonymization of Personal Information, such anonymization process shall be permanent and irreversible and comply with applicable Privacy Laws (as defined in the Provider Data Processing Addendum located at https://agreement.thepromptgroup.com/dpa). As between Provider and Customer, all right, title, and interest in the Aggregated Statistics, and all intellectual property rights therein, belong to Provider. Customer agrees that Provider may make Aggregated Statistics publicly available and otherwise use them to the extent permitted under applicable Law, provided they do not identify Customer or Customer’s Confidential Information.
4.4Data Processing Addendum
To the extent Provider will Process Personal Information (as defined in the Data Processing Addendum) that is subject to applicable Privacy Laws in providing the Services, each Party will comply with its obligations in the Data Processing Addendum, which is incorporated into this Agreement by reference.
4.5Customer Systems; Data Warehouse; Security
Customer authorizes Provider to connect to, access, retrieve from, and exchange data with the Customer systems, accounts, databases, data warehouses, APIs, websites, content repositories, and other data sources identified in an Order, enabled by Customer, or otherwise approved by Customer in writing (collectively, “Customer Systems”), solely to provide the Services. The applicable Order or implementation documentation may identify the relevant Customer Systems, data categories, access method, and intended purpose. Provider may store Customer Data in Provider-operated or Provider-hosted data warehouses, knowledge bases, indexes, or similar systems only for so long as reasonably necessary to provide the Services during the Term, subject to Section 10.3 and the Data Processing Addendum. Provider will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, alteration, or disclosure, including encryption in transit and encryption at rest for Customer Data stored in Provider-controlled production systems where commercially reasonable. Provider may use subprocessors in accordance with the Data Processing Addendum and will maintain a current subprocessor list and make it available to Customer upon request. Customer is responsible for configuring access permissions to Customer Systems and for ensuring Provider is authorized to access the Customer Data made available through them.
5Customer Obligations
Customer is responsible for its Customer Data, including its content and accuracy, and will comply with applicable Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and obtained all rights, licences, consents, permissions, and authorizations necessary for Provider to access Customer Systems, Process Customer Data, use Customer-directed third-party materials or sources, publish approved Published Content, and otherwise exercise the rights granted to Provider under this Agreement without violating applicable Law, third-party rights, contractual restrictions, or applicable platform terms. Customer will not direct Provider to access, collect, use, or publish any data, content, source, system, or channel where Customer lacks the authority to provide such direction.
6Suspension of Service
Provider may immediately suspend Customer’s access to any or all of the Provider Technology if: (a) Customer breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Provider suspend the Provider Technology or otherwise may impose additional liability on the part of Provider; or (d) Customer’s actions risk harm to any of Provider’s other customers or the security, availability, or integrity of any of the Provider Technology. Where practicable, Provider will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing).
7Third-Party Platforms
The Services may support or require access to, collection from, integration with, publication to, or exchange of data with third-party platforms, add-ons, services, products, websites, repositories, or other sources not provided by Provider (“Third-Party Platforms”). Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Provider does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, interoperability, terms, moderation, or their providers’ use of Customer Data. Customer authorizes Provider, on Customer’s behalf and solely to provide the Services, to access, retrieve, collect, exchange, submit, and publish Customer Data and Published Content to or from any Third-Party Platform that Customer enables, identifies in an Order, directs Provider to use, or otherwise approves in writing. Where access requires Customer credentials, tokens, API keys, or other authentication materials, Customer agrees to provide or enable them, represents and warrants that it has the necessary rights to do so, and authorizes Provider to use them for the Services. Provider will use such access only within the scope authorized by Customer and subject to Sections 4 and 5.
8Fees and Taxes
8.1Fees
Customer will pay the fees for the Provider Technology set forth in each Order (“Fees”). All Fees will be paid in Canadian dollars unless otherwise provided in the Order. Fees are invoiced as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Fees for Order Renewal Terms (as defined below) shall be at Provider’s then-current rates, regardless of any discounted pricing in a prior Order. All Fees are non-refundable except as may be set out in Section 9.2 (Product Warranty) and Section 13.3 (Mitigation). If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments, including legal fees, court costs, and collection agency fees.
8.2Taxes
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, state, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
9Warranties and Disclaimers
9.1Mutual Warranties
Each Party represents, warrants, and covenants to the other Party that:
(a) it is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation or formation;
(b) the execution and delivery of this Agreement by such Party and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Party;
(c) this Agreement constitutes a valid and binding obligation of such Party that is enforceable in accordance with its terms; and
(d) the entering into and performance of this Agreement by such Party does not and will not violate, conflict with, or result in a material default under any other agreement or obligation by which such Party is or may become subject or bound.
9.2Product Warranty
Provider warrants to Customer that, during the Term, the Services will perform materially as described in the then-current applicable Documentation and Provider will not materially decrease the overall functionality of the Services during the Term (the “Product Warranty”). If Provider breaches the Product Warranty and Customer makes a written warranty claim identifying in reasonable detail the nature of the breach, then Provider will use reasonable efforts to correct the breach and cause the Product Warranty to be satisfied. If Provider cannot do so within 30 days after receipt of a warranty claim that satisfies the requirements of the immediately foregoing sentence, either Party may terminate the Agreement. Provider will then refund to Customer any pre-paid, unused Fees for the terminated portion of the Term. This Section sets forth Customer’s exclusive remedy and Provider’s entire liability for breach of the Product Warranty.
9.3Compliance with Laws
Provider represents and warrants to Customer that Provider’s provision of the Services will comply with all applicable Laws in its delivery of the Services.
9.4Disclaimers
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.1 (MUTUAL WARRANTIES), 9.2 (PRODUCT WARRANTIES), AND 9.3 (COMPLIANCE WITH LAWS), THE SERVICES, PROVIDER TECHNOLOGY, ANY SUPPORT, OR TECHNICAL SERVICES, AND ALL OTHER PROVIDER SERVICES ARE PROVIDED “AS IS”. PROVIDER, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES, PROVIDER TECHBOLOGY OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. PROVIDER IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE PROVIDER’S CONTROL. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that: (a) the Services and Service Content are not professional advice; (b) the Services and Service Content may include inaccurate or erroneous information; (c) Customer is responsible for independently evaluating the Service Content and any other information Customer receives from the Services; and (d) due to the changing nature of AI Platforms and Third-Party Platforms, Provider does not guarantee the Services will support or be compatible with specific AI Platforms and Third-Party Platforms. Notwithstanding anything to the contrary, the representations and warranties set forth in Sections 9.2 (Product Warranties) and 9.3 (Compliance with Laws) do not apply to: (i) issues caused by Customer Data; (ii) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (iii) issues in or caused by AI Platforms or Third-Party Platforms or other third-party systems; (iv) use of the applicable Provider Technology other than in accordance with the Agreement and the Documentation; or (v) Trials and Betas (as described in Section 16) or other free or evaluation use of Provider Technology.
10Term and Termination
10.1Term
The term of this Agreement begins on the effective date set forth in the first Order between the Parties referencing this MSA (the “Effective Date”) and continues until the expiration or termination of all Orders hereunder, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). The term of each Order will continue for the initial term specified in the applicable Order (the “Order Initial Term”) and will automatically renew for additional successive renewal terms having the length set forth on the Order (each renewal term, an “Order Renewal Term”), unless either Party gives the other Party notice of non-renewal at least 30 days before the start of the next Order Renewal Term. If no Order Renewal Term is specified in the Order, then the Order will expire at the conclusion of the Order Initial Term.
10.2Termination
Either Party may terminate this Agreement, effective on written notice to the other Party, if: (a) the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; provided, however, that if the breach is a failure by Customer to pay any Fees owed hereunder when due, the cure period for such breach shall be ten (10) days from the date of Customer’s receipt of written notice of such failure to pay, and after one (1) such cure opportunity, Customer shall not have the ability to cure a breach for failure to pay; or (b) if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3Effect of Termination
Upon expiration or termination of this Agreement, Customer’s rights to access, and Provider’s obligations to provide, the Services, Provider Technology, and Documentation will cease. Following expiration or earlier termination, Provider will promptly return or delete Customer Data and other Customer Confidential Information, including Customer Data stored in Customer-specific knowledge bases, data warehouses, indexes, embeddings, caches, or other derived or replicated stores, provided that Provider may retain copies (a) as expressly agreed by the Parties, (b) as necessary to comply with applicable Law, and (c) to the extent contained in standard backups that are not reasonably accessible in the ordinary course, in each case subject to this Agreement’s confidentiality and security provisions and deletion in accordance with Provider’s ordinary backup-retention cycle. No termination or expiration affects Customer’s obligation to pay Fees due before termination or, except as expressly set out in this Agreement, entitles Customer to a refund.
10.4Survival
The following Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 4 (Data and Artificial Intelligence), 5 (Customer Obligations), 8 (Fees and Taxes), 9.4 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Feedback), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), 16 (Trials and Betas), 17 (Publicity), and 18 (General Terms) and any other Sections that, by their express terms, should survive such expiration or termination. Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a Party may have.
11Feedback
To the extent Customer provides Provider with feedback (including suggestions and comments for enhancements or functionality) regarding the Provider Technology (including Service Content and underlying datasets used to prepare the same), or Provider’s products, services, or other technology (“Feedback”), Provider has (a) sole discretion to determine whether and how to proceed with Feedback and (b) the full and unrestricted right to use and exploit the Feedback or incorporate Feedback into any of its products, services, technology, or other materials.
12Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The limitations in this Section 12 will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
13Indemnification
13.1Indemnification by Provider
Provider will defend, indemnify, and hold harmless Customer against any damages and costs finally awarded against Customer (including reasonable legal fees), or agreed in a settlement by Provider, resulting from any third-party claim alleging that the Provider Technology, when used by Customer in accordance with this Agreement, infringes or misappropriates a third party’s Canadian or United States patent, copyright, trademark, or trade secret, provided that Customer promptly notifies Provider in writing of the third-party claim, cooperates with Provider, and allows Provider sole authority to control the defence and settlement of such third-party claim.
13.2Indemnification by Customer
Customer will indemnify and hold harmless and, at Provider’s request, will defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns (“Provider Indemnified Parties”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses, including reasonable legal fees, arising from any third-party claim, suit, action, or proceeding alleging that: (a) Customer Data, Published Content approved by Customer, Customer Systems, Publication Channels, or any Customer-directed third-party materials or sources, or Provider’s authorized access to, use of, collection from, or publication to the foregoing in accordance with this Agreement, infringes, misappropriates, or otherwise violates a third party’s intellectual property, privacy, publicity, confidentiality, contractual, or other rights, or applicable Law; or (b) the claim is based on Customer’s or any User’s negligence, wilful misconduct, or use of the Services, Provider Technology, or Documentation, whether permitted by or in violation of this Agreement; provided that Customer may not settle any third-party claim against a Provider Indemnified Party unless Provider consents to the settlement, and Provider will have the right, at its option, to defend itself or participate in the defence through counsel of its choice.
13.3Mitigation
In response to an actual or potential claim relating to infringement, misappropriation, or violation of intellectual property rights with respect to the Services, Provider Technology or Documentation, if required by settlement or injunction or as Provider determines necessary, Provider may at its option: (a) procure rights for Customer’s continued use of the applicable Services, Provider Technology or Documentation; (b) replace or modify the allegedly infringing portion of the applicable Services Provider Technology or Documentation to avoid infringement or misappropriation without materially reducing such Services, Provider Technology or Documentation’s overall functionality; or (c) terminate this Agreement and refund to Customer any pre-paid, unused Fees for the terminated portion of the Term.
13.4Exceptions
Provider’s obligations in this Section 13 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services, Provider Technology or Documentation or use of Services, Provider Technology or Documentation in combination with items not provided by Provider (including Third-Party Platforms or Customer Data); (b) to unauthorized use of the Services, Provider Technology or Documentation; (c) if Customer settles or makes any admissions about a claim without Provider’s prior consent; or (d) to Trials and Betas or other free or evaluation use.
13.5Exclusive Remedy
THIS SECTION 13 SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND PROVIDER’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
14Confidentiality
14.1Definition
“Confidential Information” means information disclosed to the receiving Party (“Recipient”) under this Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature or the circumstances of its disclosure. Provider’s Confidential Information includes the terms and conditions of this Agreement and the Services, Provider Technology and Documentation (including any technical or performance information about the Provider Technology). Customer’s Confidential Information includes Customer Data.
14.2Obligations
Recipient will: (a) hold Confidential Information in confidence and implement reasonable measures to prevent its disclosure to third parties except as permitted in this Agreement, including Section 4.2 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Provider is the Recipient, Provider may retain the Customer’s Confidential Information to the extent required to continue to provide the Provider Technology as contemplated by this Agreement or as otherwise required by Law. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Provider, the subcontractors referenced in Section 18.10), provided it remains responsible for their compliance with this Section 14 and they are bound by confidentiality and non-use obligations no less protective than this Section 14.
14.3Exclusions
These confidentiality obligations do not apply to information that Recipient can demonstrate: (a) is or becomes public knowledge through no fault of the receiving Party or its representatives; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.
14.4Remedies
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14, without necessity of posting a bond or proving actual damages.
15Required Disclosures
Nothing in this Agreement prohibits either Party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other Party in advance (to the extent permitted by Law) and reasonably cooperates in any effort to obtain confidential treatment at the Discloser’s cost.
16Trials and Betas
If Customer receives access to the Services or Provider Technology or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Provider (or if not designated, 30 days). Trials and Betas are optional and either Party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Provider may never release, and their features and performance information are Provider’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TRIALS AND BETAS ARE PROVIDED AS-IS AND PROVIDER PROVIDES NO REPRESENTATION, WARRANTY, CONDITION, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED CAD$50.
17Publicity
Provider may include Customer and its trademarks in Provider’s customer lists and promotional materials but will cease further use at Customer’s written request.
18General Terms
18.1Assignment
Neither Party may assign this Agreement without the prior consent of the other Party, except that either Party may assign this Agreement in connection with a merger, amalgamation, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
18.2Governing Law, Jurisdiction and Venue
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Ontario and the federal laws of Canada applicable therein. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, the Services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding.
18.3Notices
Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a “Notice”) in writing and addressed to The Prompt Group Ltd., 1 Yorkville Avenue, Toronto, Ontario M4W 0B1, Attention: Anton Sopov, Chief Executive Officer, email: anton@thepromptgroup.com, if to Provider or to the address set out in the Order if to Customer (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Each Party shall deliver all Notices by personal delivery, nationally recognized same day or overnight courier (with all fees prepaid), email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is conclusively deemed to have been validly and effectively given: (i) if sent by personal delivery or by courier (all fees prepaid) on the date of receipt; (ii) if sent by email, upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment); or (iii) if sent by certified or registered mail, return receipt requested, postage prepaid on the third day after the mailing thereof.
18.4Additional Terms
Certain features of the Services are governed by additional product-specific terms which may be made available to Customer from time to time, including the terms located at https://agreement.thepromptgroup.com/supplemental-terms (“Supplemental Terms”). Supplemental Terms governing any Services used by or made available to Customer are deemed incorporated into this Agreement.
18.5Entire Agreement
This Agreement, including the Order, Service Level Agreement, Supplemental Terms, the Data Processing Addendum, and other attachments referenced herein, is entire agreement between the Parties regarding the subject matter herein and supersedes any prior or contemporaneous agreements regarding such subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs or by way of DocuSign), each of which is deemed an original and which together form one and the same agreement.
18.6Amendments
Except as otherwise expressly set forth in this Agreement, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Provider. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Provider; any of these Customer documents are for administrative purposes only and have no legal effect. Notwithstanding the foregoing, Provider may from time to time notify Customer of updates to this Agreement (including by displaying a notification on the Services). Such updated version of this Agreement will become effective on a going forward basis at the start of the first Order Renewal Term occurring at least 30 days after the date on which Provider provided or made available such notice to Customer.
18.7Waivers
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18.8Severability
If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of this Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.
18.9Force Majeure
Neither Party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, change in Law, refusal of government license, or natural disaster.
18.10Subcontractors
Provider may use subcontractors and permit them to exercise Provider’s rights under this Agreement, but Provider remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
18.11Independent Contractors
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
18.12Export
Customer will comply with all relevant Canadian and foreign export and import Laws in using any Services, Provider Technology or Documentation.
18.13Open Source
The Services may incorporate third-party open-source software (“OSS”), including as listed in the Documentation or otherwise disclosed by Provider in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
18.14Conflicts in Interpretation
Inconsistencies or conflicts among the terms of this Agreement will be resolved in the following descending order of precedence: (a) the Data Processing Addendum; (b) the terms of the Order; (c) the Supplemental Terms; and (d) any other provision of this Agreement.
18.15Successors and Assigns
This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective permitted successors and assigns.
18.16No Third-Party Beneficiaries
Except as provided in Section 13, this Agreement is for the sole benefit of the Parties and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.