Delve AI Terms of Service
Effective Date: 25th March 2025
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Modifications to this Agreement: From time to time, Delve AI may modify this Agreement. Unless otherwise specified by Delve AI, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of this Agreement goes into effect. Delve AI will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Service Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
These Terms of Service (the “Agreement”) is entered into by and between Delve AI Inc., a Delaware corporation (
1. Provision of Service
Delve AI will make the Services and Software available to Customer pursuant to this Agreement, the Supplemental Terms (where applicable), and the Documentation, and provide such Services in accordance with this Agreement, including the Data Processing Addendum (“DPA”), the laws and government regulations applicable to Delve AI’s business, during each Subscription Term, and if applicable, the Privacy Notice. During the Subscription Term, Delve AI grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, including the right to download, install, and use the Mobile Apps in connection with the authorized use of the Services.
2. Responsibilities of Customer
a. Customer Account. Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate, and complete so that Delve AI may send notices, statements, and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify Delve AI promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. Delve AI and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
b. Acceptable Use. Customer may only use the Services in accordance with the Documentation, subject to the use limitations indicated in any Subscription pursuant to which Customer subscribes to the Services, and the terms of this Agreement. Customer agrees to comply with the Delve AI Acceptable Use and Conduct Policy (as defined below) which is hereby incorporated into this Agreement.
c. Use Restrictions. Customer agrees not to use the Delve AI Technology (as defined below): (i) to process data on behalf of any third party other than Customer’s Users and End Users; (ii) in violation of applicable law; (iii) to store or transmit any content that infringes upon any third party’s intellectual property rights; (iv) for competitive intelligence or performance benchmarking purposes; (v) to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Delve AI Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (vi) to falsely imply any sponsorship or association with Delve AI; or (vii) to decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of Delve AI Technology.
3. Customer Data
a. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Delve AI Technology. Subject to the terms of this Agreement, Customer hereby grants to Delve AI and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide, maintain, and improve the Delve AI Technology and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Delve AI under this Agreement. If Customer is subject to the US Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Customer may not upload protected health information (“PHI”) as defined by HIPAA.
b. Data Security. The parties will comply with the terms of the DPA, which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. Delve AI will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. Delve AI measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that Delve AI and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Notice.
4. Intellectual Property
a. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title, and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and Delve AI obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. Delve AI and its licensors retain all right, title, and interest in and to Delve AI Technology and Usage Data (as defined below). Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. Delve AI may freely use and incorporate into Delve AI’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to Delve AI’s products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by Delve AI in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users. Customer agrees that its name, logo, and/or use case may be used by Delve AI in marketing materials (“Promotional Materials”). Promotional Materials may be for both internal and/or external purposes of Delve AI and such rights granted herein shall be worldwide, perpetual, and in any media.
b. Usage Data. Notwithstanding anything to the contrary in this Agreement, Delve AI may collect and use any data that is gathered in or derived from the use of the Services (“Usage Data”) to develop, improve, support, and operate its products and services. Delve AI shall not share with a third party any Usage Data that includes Customer’s Confidential Information except (i) in accordance with Section 8 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that the data no longer directly identifies Customer or Customer’s Users.
c. Updates. Delve AI may modify the Services, Software, and Service Plans from time to time, including by adding or removing features, functions, and entitlements; provided, however, that (i) Delve AI will not materially decrease the overall functionality of the Services or Software during Customer’s Subscription Term, except where such modifications are required for data security reasons or to comply with applicable law and (ii) any such modifications are made on a prospective and nondiscriminatory basis. Such modifications to any Services, Service Plans, or Software are subject to this Agreement. Customer agrees that its purchase to subscriptions of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written comments made by Delve AI with respect to future functionality or features.
5. Fees and Payment
a. Fees and Payment. All charges associated with Customer’s Account (“Fees”) are set forth in the applicable SOF or Website. For credit card payments, the payment is due immediately upon receipt of invoice. Customer hereby authorizes Delve AI or our authorized agents, as applicable, to bill your credit card upon subscription to the Services (and any renewal thereof). For payments through other accepted methods, payment is due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable SOF or Website. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below.
b. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from Delve AI, Delve AI may suspend Customer’s access to the Delve AI Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
c. Payment Disputes. Delve AI will not exercise its rights under Section 5(b) (Late Payments), Section 6(c)(i) (Suspension of Service), or Section 6(d) (Termination for Cause) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, Delve AI will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
d. Applicable Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent Delve AI is legally required to collect the same, will be itemized on the Delve AI invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that Delve AI receives the amount actually quoted and invoiced. If Delve AI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides Delve AI with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Orders by Affiliates. Customer’s Affiliates may purchase Services directly from Delve AI by executing an SOF which is governed by the terms of this Agreement. Such SOF will establish a new and separate agreement between the Customer’s Affiliate and the Delve AI entity signing such SOF. If the Affiliate resides in a different country than Customer, then the SOF may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
f. Purchases from Channel Partners. Customer may procure use of any Services, Software, or Mobile Apps from a third-party authorized reseller of Delve AI, including third party marketplaces (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any Services, Software, or Mobile Apps procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable (including all applicable Taxes) for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. Customer understands and agrees that, if Customer purchased the Services, Software, or Mobile Apps subscriptions via a Channel Partner, service credits and refunds payable under this Agreement may be payable or applied by Channel Partner acting on behalf of Delve AI in proportion to the fees paid by Customer to the Channel Partner, and the discharge by the Channel Partner of such obligations will relieve Delve AI of the same under this Agreement.
6. Term, Termination and Suspension
a. Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
b. Renewal. Unless a party downgrades or gives written notice of non-renewal at least seven (7) days’ prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew at the same Service Plan (including any add-ons), for a period equal to the previous Subscription Term. Delve AI reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
c. Suspension. Delve AI may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Delve AI to prevent or address the introduction of Malicious Software (as defined in Section 9.b below), a security incident, or other harm to Customer, Delve AI, or Delve AI’s other customers. Delve AI will notify Customer of any such suspension. Delve AI will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Delve AI Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
d. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
e. Free Trial Customers. Upon the expiration of Customer’s free trial, Delve AI may immediately suspend Customer’s access to the free trial Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in this Agreement, Delve AI will have no obligation to maintain, store, or otherwise retain Customer Data beyond the end of the free trial period.
7. Data Export and Retention.
Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs, and other Delve AI Technology will terminate. Delve AI strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Delve AI in the normal course of operation deletes all Customer Data within 24 hours of termination or expiration of this Agreement or any SOF, except as necessary to comply with Delve AI's legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted.
8. Confidentiality.
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer of Warranties
a. Service Warranty. Delve AI warrants that the Services, Software, or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, Delve AI will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if Delve AI is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software, or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than Delve AI or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
b. Malware Warranty. Delve AI warrants that the Services hosted by Delve AI will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of Delve AI or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices, or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Indemnification
a. Indemnification by Delve AI. This section states Delve AI’s entire liability and Customer’s exclusive remedy with respect to an IP Claim. Delve AI will defend Customer, and its officers, directors, and employees against any Claim, from any third party claim alleging that Customer’s use of the Delve AI Technology accessed or used in accordance with this Agreement infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer, or agreed in settlement by Delve AI (including reasonable attorneys’ fees) resulting from such IP Claim. Delve AI will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Delve AI Technology by Customer, its Affiliates or Users; (ii) modification of the Delve AI Technology by anyone other than Delve AI or its representatives; or (iii) the combination, operation, or use of the Delve AI Technology with other data, hardware, or software not provided by Delve AI. If Customer’s use of the Delve AI Technology results (or in Delve AI’s opinion is likely to result) in an IP Claim, Delve AI may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonable as determined by Delve AI, then either Customer or Delve AI may terminate Customer’s subscription to the Service, whereupon Delve AI will refund Customer, on a pro-rated basis, any Fees Customer has previously paid Delve AI for the corresponding unused portion.
b. Indemnification by Customer. Customer will defend Delve AI and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless Delve AI and its Affiliates from and against any damages and costs awarded against Delve AI and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
11. Limitation of Liability
a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO DELVE AI IN THE APPLICABLE SOF IN THE TWELVE MONTHS PRECEDING THE CLAIM .
c. THE PARTIES AGREE THAT THIS SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAP SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.
d. CUSTOMER UNDERSTANDS AND AGREES THAT THE PRIMARY INTENT OF SECTION 11 IS TO DISTRIBUTE THE RISKS ASSOCIATED WITH THIS AGREEMENT BETWEEN BOTH PARTIES. THIS LIMITS POSSIBLE LIABILITIES, TAKING INTO ACCOUNT THE COST OF THE FEES. IF DELVE AI WERE TO TAKE ON ADDITIONAL LIABILITY BEYOND WHAT IS SPECIFIED IN THIS AGREEMENT, THE FEES WOULD HAVE BEEN MARKEDLY HIGHER.
12. Miscellaneous.
a. Use of Third Parties for Payment Processing. Delve AI may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Delve AI. Customer must notify Delve AI of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing Delve AI at support@delve.ai.
b. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
c. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice, the DPA, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Delve AI, including but not limited to Customer registration forms and purchase orders, regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any SOF and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Supplemental Terms, and fourth the DPA, and fifth this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
d. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
e. Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9.c (Warranty Disclaimer), 10 (Indemnification ), 11 (Limitation of Liability), 12.c (Entire Agreement), 12.f (Survival), 12.g. (Notices), 12.j (Governing Law), 12.k (Dispute Resolution), and 13 (Definitions) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
f. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the SOF; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to Delve AI is: Delve AI Inc., 548 Market St #49064, San Francisco, CA 94104-5401 with a copy to legal@delve.ai by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
g. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Delve AI at legal@delve.ai.
h. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited , acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If Delve AI is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then Delve AI will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
i. Governing Law. This Agreement is governed by the laws of the State of California without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County for any claims or dispute relating to this Agreement.
j. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will first be determined by arbitration in San Francisco, California. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
k. Export Compliance and Use Restrictions. The Services and other Software or components of the Services which Delve AI may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including, without limitation Cuba, Iran, North Korea, Syria or the Crimea or so-called Donetsk People’s Republic (DNR) or Luhansk People’s Republic regions of Ukraine) (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer’s Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
13. Definitions
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Affiliate” or “Subsidiaries” means with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Acceptable Use and Conduct Policy” means the Delve AI Acceptable Use and Conduct Policy, which is located currently at https://www.delve.ai/aup, as updated from time to time.
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Data Processing Addendum” or “DPA” means Delve AI’s Data Processing Addendum at https://www.delve.ai/data-processing-addendum as updated from time to time.
“Documentation” means, the then-current, generally available user documentation provided by Delve AI detailing the functionalities of the Software and the Services.
“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.
“Delve AI Technology” means (i) the Services, Software, Mobile Apps, Documentation, Delve AI’s APIs, Delve AI’s website(s), and any content published on the Delve AI’s websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) Delve AI’s Confidential Information, and (iv) any modifications or derivative works of the foregoing.
“Mobile Apps” means, the Delve AI-branded Software applications provided by Delve AI to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).
“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
“Privacy Notice” means, Delve AI’s privacy notice currently at https://www.delve.ai/privacy, as updated from time to time.
“Service Order Form" or "SOF” means (i) any service order referencing this Agreement and executed by Customer and Delve AI, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, (a) the Services subscribed to and the corresponding Service Plans, (b) Fees payable to Delve AI, (c) the applicable Subscription Term, and (d) any relevant additional terms and conditions. This may also include any change order forms.
“Service(s)” means, the Delve AI software-based service offerings identified on the SOF and any Updates, including any Software, API or Documentation made available by Delve AI with such offering, but excludes any applications or APIs separately provided by third parties.
“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.
“Software” means the generally available software provided by Delve AI in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
“Subscription Term” means, the period stated on a SOF during which Customer subscribes to the Services.
“Supplemental Terms” means, the Services specific terms found, which are located currently at https://www.delve.ai/supplemental-terms as updated from time to time.
“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by Delve AI to all subscribing customers, but excludes separately priced new products or modules.
“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.
