TERMS OF SERVICE
Last Update: April 24, 2025
These Terms of Service (these “Terms of Service”) govern your and your Authorized Users’ (defined below) access to and use of our Platform (as defined below) and AI Support Agent (as defined below), which is made available to you (“Customer,” “you,” or “your”) by Quack AI Co. (“ Quack,” “we,” “us,” or “our”) (each a “Party,” and collectively, the “Parties”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “I AGREE” WHEN YOU SIGN UP TO ACCESS AND USE OUR PLATFORM AND/OR AI SUPPORT AGENT, OR OTHERWISE MANIFESTING ASSENT TO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF SERVICE, AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY (THE “PRIVACY POLICY”), WHICH IS HEREBY INCORPORATED INTO THESE TERMS OF SERVICE AND MADE A PART HEREOF BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”). IF YOU DO NOT AGREE TO ANY OF THE TERMS IN THIS AGREEMENT, THEN PLEASE DO NOT USE THE PLATFORM AND AI SUPPORT AGENT.
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on our Platform. By continuing to access or use the Platform and/or AI Support Agent after we have posted such modifications, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Platform and AI Support Agent.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Capitalized terms not defined in these Terms of Service shall have the meaning set forth in our Privacy Policy.
1. DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. “Administrative User” means Customer’s employees, contractors, or agents authorized by Customer to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Platform will be limited to their provision of services to Customer.
1.2. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.3. “AI Support Agent” means our proprietary application/software agent incorporating machine learning, artificial intelligence, or similar technologies, that is made available to you on a white-label basis subject to the terms and conditions of this Agreement.
1.4. “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
1.5. “Authorized User” means collectively, the Administrative Users and End Users. You are responsible for all usage of the Platform and the AI Support Agent by your Authorized Users or by any third-party.
1.6. “Customer Data” means (i) any data and information that you or your Administrative Users submit to the Platform, including, without limitation, the personal information (such as name, email address, and other identifying information) of Administrative Users; (ii) Third-Party Data; and (iii) Customer Content.
1.7. “Customer Digital Properties” means websites and online platforms operated by Customer on which Customer publishes the AI Support Agent.
1.8. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Platform and AI Support Agent as provided or made available by Company to Customer whether in a written or electronic form.
1.9. “End Users” means users of Customer Digital Properties that access, use, or otherwise interact with the AI Support Agent.
1.10. “End User Data” means any data and information that End Users submit to the AI Support Agent, including the Input.
1.11. “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform or AI Support Agent to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform or AI Support Agent.
1.12. “Order Form” means an order that is signed by authorized representatives of both Parties and that sets forth: (i) the applicable products and services purchased by Customer; (ii) the applicable Fees; (iii) the Subscription Term; and (iv) other mutually agreed upon terms and conditions relating to such order.
1.13. “Personal Information” means any information: (i) that can be used to identify, contact, or precisely locate a natural person, household or device; and (ii) defined as ‘personal data,’ ‘personal information,’ ‘personally identifiable information,’ or ‘individually identifiable health information’ under any Applicable Laws, that is processed by or on behalf of Customer through the Platform and/or AI Support Agent.
1.14. “Platform” means our proprietary platform that helps you provides you information about your customer support requests and tickets, including but not limited to, ticket volumes by categories, details of bugs by topics, and high volume ticket topics, all Updates thereto, together with all Documentation.
1.15. "Sensitive Information" means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, protected health information, personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under Applicable Law relating to privacy and data protection
1.16. “Subscription Term” means the duration of the subscription for the Platform and AI Support Agent that you purchase and as described in the applicable Order Form.
1.17. “Third-Party Data” means data extracted, received, and/or obtained from Third-Party Services.
1.18. “Updates” means any generally available corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the right of the decimal point (e.g., v3.0 to v3.1) to the Platform and/or AI Support Agent that Quack provides to Customer under this Agreement. All version numbers shall be reasonably determined by Quack in accordance with normal industry practice. Updates do not include additions or modifications that Quack considers to be a separate product, or for which Quack charges its customers extra or separately.
1.19. “Usage Data” means the data that we collect in connection with our monitoring of the performance and use of the Platform and AI Support Agent by you and your Authorized Users, including, without limitation, date and time that you access the Platform or AI Support Agent, the portions of the Platform or AI Support Agent visited, the frequency and number of times such pages are accessed, the number of times the Platform or AI Support Agent is used in a given time period and other usage and performance data.
2. ORDERS. The access to the Platform and AI Support Agent and Support Services to be made available under this Agreement will be as set forth in one or more Order Forms. Each Order Form is deemed incorporated into and made a part of this Agreement. To the extent any provision set forth in an Order Form conflicts with any provision set forth elsewhere in this Agreement, the provision set forth in this Agreement shall govern, unless such Order Form includes the section numbers of this Agreement that the Parties agree no longer govern or are modified for the matters covered thereby
3. ACCESS TO THE PLATFORM AND AI SUPPORT AGENT.
3.1. Right to Access the Platform and AI Support Agent. Subject to the terms and conditions of this Agreement, we hereby grant you during the Subscription Term a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license (i) to permit your Administrative Users to access and use the Platform solely for your internal business purposes; and (ii) to allow your End Users to access and use the AI Support Agent.
3.2. Modifications. We reserve the right to modify the Platform and AI Support Agent, from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Platform and AI Support Agent at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Platform and AI Support Agent.
3.3. Beta Features. From time to time, we may invite Customer to try “beta” features or functionalities of the Platform or AI Support Agent which are not generally available to our customers for use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for use, are not considered part of the Platform or AI Support Agent under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Platform or AI Support Agent. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer’s and Authorized Users’ use of any beta feature is at Customer’s own risk.
3.4. Restrictions on Use. You shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to use the Platform or AI Support Agent; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or AI Support Agent; (iii) modify, adapt, or translate the Platform or AI Support Agent, or any portion or component thereof; (iv) make any copies of the Platform or AI Support Agent, or any portion or component thereof, except as permitted under this Agreement; (v) resell, distribute, or sublicense the Platform or AI Support Agent, or any portion or component thereof, or use any of the foregoing for the benefit of anyone other than Customer; (vi) remove or modify any proprietary markings or restrictive legends placed on the Platform or AI Support Agent; (vii) use the Platform or AI Support Agent, or any portion or component thereof in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Platform or AI Support Agent any Harmful Code; (ix) use the Platform or AI Support Agent in connection with service bureau, timeshare, service provider or like activity whereby you operate the Platform or AI Support Agent for the benefit of a third party; or (ix) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Platform or AI Support Agent.
3.5. Publication of AI Agents. Customer is solely responsible for testing the AI Support Agent in the testing environment on the Platform prior to making it available to its End Users. Upon publishing the AI Support Agent on the Customer Digital Properties., Customer shall be deemed to have accepted the AI Support Agent.
3.6. Additional Terms and Conditions For AI Support Agent. Customer hereby represents, warrant and covenants that Customer and its Authorized Users shall use the AI Support Agent only (i) in accordance with this Agreement; (ii) in a lawful manner and in compliance with all Applicable Laws; and (iii) in a manner that does not infringe or attempt to infringe, misappropriate or otherwise violate any of our intellectual property, proprietary or privacy rights or those of any third party. By using the AI Support Agent, Customer and its Authorized Users agree: (i) not to engage in activity that is harmful to Quack, including but not limited to, excess usage, bot/scraping behaviors, malicious software, technical attacks, prompt-based manipulation, and other off-platform abuses; (ii) not to engage in activity that is harmful to you or others or otherwise cause harm to devices, software, individuals, organizations, or society; (iii) not to engage in activity that is fraudulent, false, or misleading; (iv) not to generate defamatory, libelous, harassing, abusive, or hateful content using the AI Support Agent; (v) not to use AI Support Agent to create or share adult content, violence or gore, hateful content, terrorism and violent extremist content, glorification of violence, child sexual exploitation or abuse material, or content that is otherwise disturbing or offensive; (vi) not to use the AI Support Agent to circumvent, disable or otherwise interfere with security-related features and passwords or impersonate others; (viii) not to use the AI Support Agent or any Output to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the AI Support Agent and/or our products and services; (ix) not to engage in any illegal activity or in any activity that has a high risk of physical or economic harm; and/or (x) represent that Output was human-generated when it was not. AI Support Agent may may block any Inputs or Outputs that violate this Agreement, or that are likely to lead to the creation of material that violates this Agreement. Abuse of the AI Support Agent, such as repeated attempts to produce prohibited content or other violations of this Agreement, may result in service or account suspension and/or cancelation.
3.7. Documentation. Customer may copy and use (and permit the Authorized Users to copy and use) the Documentation solely in connection with the use of the Platform or AI Support Agent under this Agreement.
3.8. Third-Party AI Models. The Platform or AI Support Agent may use Third-Party AI Models to provide the AI features and functionality. Quack agrees that throughout the Subscription Term, Quack will ensure that it at all times maintains all rights and licenses in and to the Third-Party AI Models that are necessary to ensure that Customer and its Authorized Users can use the Platform or AI Support Agent in the manner contemplated in this Agreement. QUACK, NOT BEING THE OWNER, OPERATOR, SUPPLIER, OR PRODUCER OF THE THIRD-PARTY AI MODELS NOR THEIR AGENT, DOES NOT ENDORSE ANY THIRD-PARTY AI MODELS, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY AI MODELS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
3.9. Third-Party Services. Customer shall secure the right for Quack to connect or integrate the Platform with certain third-party services, including, but not limited to, Salesforce and Customer’s ticketing system for customer support (the “Third-Party Services”). Customer will reasonably cooperate with Quack to (i) grant Quack access, or if necessary, obtain permission for Quack to access, such Third-Party Services; (ii) provide reasonable technical support and resources, including personnel, to assist Quack in the integration process; and (iii) supply all necessary documentation, credentials, and information required to access and extract data from such Third-Party Services. Customer acknowledges that Quack’s ability to integrate and extract Third-Party Data is dependent on Customer’s compliance with this Section. Quack is not responsible for the accuracy and completeness of the Third-Party Data. In addition, Quack cannot guarantee the Third-Party Data will always be available. If a source of Third-Party Data becomes unavailable or Quack’s access to such source is terminated by the Third-Party Services, then the Third-Party Data will no longer be available as part of Customer Data.
3.10. Onboarding of Administrative Users. Each Administrative User will be required to create an account, which includes a username, a password, and certain additional information, including a valid email address, that will assist in authenticating the Administrative User’s identity when he or she logs into the Platform in the future (collectively, “Log-in Credentials”). When creating an account, an Administrative User must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of Administrative Users’ Log-in Credentials, as well as for any use, misuse, or communications entered through the Platform. You shall promptly inform us of any need to deactivate a username, password, or other Log-in Credential. We reserve the right to delete or change Administrative Users’ Log-in Credentials at any time and for any reason. We will not be liable for any unauthorized use of an Administrative User’s account.
3.11. Support Services. Quack shall use commercially reasonable efforts to provide you and your Administrative Users problem resolution and technical support in connection with the Platform during the Subscription Term (the “Support Services”).
3.12. Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data during the Subscription Term for the purpose of performing its obligations under this Agreement. You will have sole responsibility for the accuracy, quality, and legality of your Customer Data.
3.13. Customer Content. You and Authorized Users may provide input to the AI Support Agent (“Input”) and receive output from the AI Support Agent (as applicable) based on the Input (“Output”). We call Input and Output together “Customer Content.” We will only use Customer Content as necessary to perform our obligations under this Agreement, comply with Applicable Law, and enforce Quack policies. We will not use Customer Content to develop or improve the AI Support Agent or to train machine learning (“ML") or artificial intelligence (“AI”) models that are incorporated into the AI Support Agent. You are responsible for all Input, and you are solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for your use case, including by utilizing human review as appropriate. Due to the nature of artificial intelligence, Output may not be unique across all users and the AI features and functionality of the AI Support Agent may generate the same or similar Output for different users or third parties.
3.14. End User Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the End User Data during the Subscription Term for the purpose of performing its obligations under this Agreement. You will have sole responsibility for the accuracy, quality, and legality of your End User Data. We do not use End User Data to train the AI/ML models incorporated into the AI Support Agent.
3.15. Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the Customer Data, End User Data, as well as any Usage Data that we may collect, in an anonymous and aggregated form (“Aggregate Data”) for the purposes of operating, maintaining, managing, and improving our products and services including the Platform and AI Support Agent. Aggregate Data does not identify Customer or any individual (including any Authorized User). You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.
3.16. Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Customer Data from unauthorized use or disclosure.
3.17. INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Platform, AI Support Agent, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Quack. Subject to Section 3, all right, title, and interest in and to the Customer Data, Input and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property. As between the Parties and to the extent permitted by Applicable Law, you own all Output and we hereby grant you all our right, title, and interest, if any, in and to Output.
4. RESTRICTIONS
The Platform is available only for individuals aged 18 years or older. If you are under 18 years of age, then please do not access and/or use the Platform and AI Support Agent. By entering into this Agreement, you represent and warrant that you are 18 years or older.
5. FEEDBACK
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform, AI Support Agent and our services (“Feedback”). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) you have all rights and permissions necessary for us to process the Customer Data and End User Data; (ii) you have obtained all necessary and appropriate consents, permissions, and authorizations in accordance with all Applicable Laws with respect to the Customer Data and End User Data provided hereunder; (iii) use of Customer Data or End User Data in accordance with this Agreement shall not violate or misappropriate any intellectual property, privacy, publicity, contractual or other rights of any third party; (iv) you have provided legally adequate privacy notices and terms of use on Customer Digital Properties in connection with the AI Support Agent and obtained necessary consents for the processing of End User Data, including any Personal Information provided by End Users through the AI Support Agent; (v) you and your Authorized User will not submit any Sensitive Data through the Platform, or any AI Support Agent; and (vi) you and your Authorized Users will access and use the Platform and AI Support Agent in compliance with Applicable Laws.
7. NO WARRANTIES; LIMITATION OF LIABILITY
ALTHOUGH CERTAIN DATA AND MATERIALS THAT MAY BE GENERATED BY THE PLATFORM AND AI SUPPORT AGENT CAN BE USED AS AN AID TO CUSTOMER AND ITS AUTHORIZED USERS TO MAKE INFORMED BUSINESS DECISIONS, SUCH DATA AND MATERIALS ARE NOT MEANT TO SUBSTITUTE LEGAL OR BUSINESS ADVICE OR CUSTOMER’S OR ANY AUTHORIZED USER’S EXERCISE OF THEIR OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT SUCH PARTY’S SOLE DISCRETION AND ELECTION. CUSTOMER AND ITS AUTHORIZED USERS ACKNOWLEDGE AND AGREE THAT THE UNDERLYING SOFTWARE FOR THE PLATFORM HAS IN PART BEEN GENERATED BY AN ARTIFICIAL INTELLIGENCE SYSTEM AND MAY CONTAIN ERRORS, INCONSISTENCIES, OR OUTDATED INFORMATION. THE PLATFORM, AND AI SUPPORT AGENT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER QUACK NOR QUACK’S SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND QUACK HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
QUACK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY OUTPUTS. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY OF ANY OUTPUT AND YOU SHALL NOT RELY ON QUACK TO DO SO. THE OUTPUT MAY NOT REFLECT CURRENT, CORRECT OR COMPLETE INFORMATION AND YOU, YOUR AUTHORIZED USERS MAY RELY ON THE OUTPUT AT YOUR AND THEIR SOLE RISK. TO THE EXTENT THAT QUACK AND QUACK’S SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION, NOR SHALL WE BE RESPONSIBLE FOR (A) THE CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS OR CURRENCY OF THE PLATFORM, AND AI SUPPORT AGENT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER; OR (B) ANY RESULTS ACHIEVED OR ACTION TAKEN BY YOU IN RELIANCE ON THE PLATFORM, AI SUPPORT AGENT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER. ANY DECISION, ACT OR OMISSION OF YOURS THAT IS BASED ON THE PLATFORM, AI SUPPORT AGENT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER IS AT YOUR OWN AND SOLE RISK. THE PLATFORM, AI SUPPORT AGENT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER IS PROVIDED AS A CONVENIENCE ONLY AND DOES NOT REPLACE THE NEED TO REVIEW ITS ACCURACY, COMPLETENESS AND CORRECTNESS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUES, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR AI SUPPORT AGENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM OR AI SUPPORT AGENT, SHALL BE LIMITED TO THE TOTAL FEES PAID AND PAYABLE TO US BY YOU IN THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD FROM THE DATE ON WHICH THE CLAIM ARISES. ANY CLAIMS MADE BY YOU IN CONNECTION WITH YOUR USE OF THE PLATFORM OR AI SUPPORT AGENT MUST BE BROUGHT BY YOU WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.
8. INDEMNIFICATION.
You will indemnify, defend, and hold Quack, its affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Quack Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Quack Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from your (i) breach of this Agreement, including but not limited to, any breach of your representations and warranties; (ii) Customer Data; (iii) End User Data; (iv) negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of Applicable Laws; or (v) violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
9. EXTERNAL SITES
The Platform and AI Support Agent may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
10. FEES AND PAYMENT.
In exchange for your access to and use of the Platform and AI Support Agent, you agree to pay the fees for set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth in the applicable Order Form.
We may suspend your access to the Platform and AI Support Agent upon written notice to you if any undisputed invoiced amount due to us is past due. We will not suspend your access to the Platform and AI Support Agent while you are disputing any invoiced amount due to us reasonably and in good faith and are cooperating diligently to resolve the dispute. If your access to the Platform and AI Support Agent is suspended for non-payment, we may charge a re-activation fee to reinstate the access. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay any invoiced amounts that you are not disputing in good faith.
We may use a third-party payment vendor (“Third-Party Payment Processor”) to process your payment. You warrant and represent that you are the valid owner or an authorized user, of the credit card or payment account that you provide to such Third-Party Payment Processor, and that all information you provide is accurate. If payment is not received from your credit card issuer or any other payment facility, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance.
We reserve the right to institute new or additional fees, at any time upon notice to you.
11. TERM AND TERMINATION.
Your right to access and use the Platform and AI Support Agent will commence upon your acceptance of these Terms of Service and will continue for the duration of the Subscription Term set forth in the applicable Order Form.
Upon termination or expiration of this Agreement: (i) you will promptly pay all applicable Fees until the date of such termination or expiration; and (ii) you and your Authorized Users will immediately cease access to and use of the Platform and AI Support Agent.
We reserve the right to change, suspend, discontinue or terminate your access and use of all or any part of the Platform or AI Support Agent at any time without prior notice or liability. Sections 1, 3.14, 3.16, 5, 6, 7, 8, 9, 10 (until all Fees are paid), 11, 12, and 13 -19 shall survive the termination of this Agreement.
12. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Platform, AI Support Agent or any products or services (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
13. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
14. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Delaware for purposes of any such action by us.
15. CONTROLLING LAW; EXCLUSIVE FORUM
The Agreement and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement
16. FORCE MAJEURE.
Quack will not be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, COVID-19, quarantine restrictions, freight embargoes, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (collectively, “Force Majeure Event”). When such Force Majeure Event arises, Quack shall promptly notify you of its failure to perform, describing the cause of failure and how it affects performance, and the anticipated duration of the inability to perform. For the avoidance of doubt, nothing in this Section 16 shall be construed to excuse any payment obligations hereunder.
17. EXPORT CONTROL LAWS.
Our Platform and AI Support Agent may be subject to export control laws and regulations of the United States. You hereby certify that you and your Authorized Users will comply with all U.S. export control laws and regulations including but not limited to the International Traffic in Arms Regulations (“ITAR”) (22CFR 120-130), Export Administration Regulations (“EAR”) (15CFR 730-774) and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (31CFR 500598) (collectively, the “Export Control Laws”). You and your Authorized Users agree not to, directly or indirectly, use, sell, supply, export, reexport, transfer, divert, release, or otherwise dispose of the Software and any products, software, or technology (including products derived from or based on such technology) received from Quack under this Agreement to any destination, entity, or person or for any end use prohibited by applicable Export Controls Laws.
18. MISCELLANEOUS.
You may not assign any of your rights, duties, or obligations under these Terms of Service to any person or entity, in whole or in part, without written consent from Quack. Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. You acknowledge and agree that there are no third-party beneficiaries under this Agreement. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
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