Subscription Agreement
IMPORTANT, READ CAREFULLY: CUSTOMER’S USE OF AND ACCESS TO THE BETTERMODE PLATFORM, PRODUCTS AND SERVICES DESCRIBED ON CUSTOMER’S ORDER FORM(S) (COLLECTIVELY, THE “SERVICES” OR THE “SERVICE”) PROVIDED BY BETTERMODE INC (“BETTERMODE”) IS CONDITIONED UPON CUSTOMER’S COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF THIS AGREEMENT. "ORDER FORM" INCLUDES ANY ONLINE ORDER, CHECKOUT OR PLAN SELECTION ACCEPTED THROUGH THE SERVICE.
BY ACCEPTING THIS AGREEMENT—WHETHER BY (1) CLICKING A BOX TO INDICATE ACCEPTANCE, (2) SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) OTHERWISE USING THE SERVICES—THE CUSTOMER AGREES TO BE BOUND BY ITS TERMS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEY REPRESENT THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS AND CONDITIONS. IN SUCH CASES, "CUSTOMER" REFERS TO THE ENTITY. IF THE INDIVIDUAL DOES NOT HAVE THIS AUTHORITY OR DOES NOT AGREE TO THESE TERMS, THEY MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.
BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THIS AGREEMENT AND ALL ORDER FORMS, ADDENDA AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). BETTERMODE AND CUSTOMER ARE EACH A “PARTY” AND TOGETHER THE “PARTIES”. THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS
1. Provision of Service.
1.1. Provision Generally. On Customer’s acceptance of this Agreement (whether through an Order Form, use of the Services or other process), and for the Subscription Term (as defined in Section 5.1) Bettermode will provide Customer with access to the Services in accordance with the terms and conditions of this Agreement. Customer’s right to use the Service during the Subscription Term shall be subject to and in accordance with any additional conditions, restrictions or parameters specified in the Order Form(s)
1.2. Grant of Rights. Subject to the terms and conditions of this Agreement, Bettermode hereby grants to Customer a limited, royalty-free, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Service in accordance with the Documentation (as defined in Section 7.1), subject to the purchased quota (as further described in the Order Form’s pricing tiers) and solely for Customer’s internal business purposes during the Subscription Term. All rights not expressly granted to Customer are reserved by Bettermode and its licensors. There are no implied rights. Customer may permit its subsidiaries to access and use the Service under the same terms and conditions as Customer, provided that Customer remains fully liable for such use
1.3. Eligibility Requirements. By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements: (a) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement; (b) the Customer Data (as defined herein) is and will remain within Customer’s right to use, accurate, complete and current; and (c) Customer’s use of the Service will comply with all applicable laws and regulations.
1.4. Restrictions. Customer shall not (and shall not allow any third party to): (a) permit any third party to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (b) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (c) use any unauthorized robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service except to have a copy of Customer Data; (d) create any derivative works based on the Service; (e) remove any proprietary notices, labels, or marks from the Service or Documentation; (f) frame or mirror any content forming part of the Service; or (g) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Customer. Customer shall notify Bettermode immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, Bettermode reserves the right to suspend access to the Service if Bettermode reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement after providing Customer written notice of such violation and such violation is not remedied within 15 days of such notice, save that Bettermode may immediately suspend access if it reasonably believes that such access creates a security risk.
1.5. Customer Cooperation. Customer shall: (a) reasonably cooperate with Bettermode in all matters relating to the Service; (b) respond promptly to any Bettermode request to provide information, approvals, authorizations or decisions that are reasonably necessary for Bettermode to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as Bettermode may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
1.6. Output Use and Assessment. Customer is responsible for its input of prompts into (“Inputs”) and use of outputs generated by or through the Services (“Outputs”), including determining whether Output is appropriate for that use. Customer must not (and must not permit anyone else to): (a) use Output in a manner that Customer knows, or reasonably should know, violates third-party rights or law; or (b) represent that Output is human generated or approved or endorsed by Bettermode or its subcontractors. Output is generated by artificial intelligence, including by using technology provided by third-party subcontractors (“AI Tools”). Bettermode makes no warranty as to the accuracy, completeness or reliability of Output or that it does not violate third-party rights or law. Due to the nature of the Service, (i) Output may not be unique or exclusive to Customer and its users, (ii) the same or similar Input may yield differing Output, and (iii) Output does not represent Bettermode’s or its subcontractors’ views. As between Bettermode and Customer, Outputs are Customer Data. BETTERMODE CANNOT GIVE ANY WARRANTY OR REPRESENTATION IN RESPECT OF THE ACCURACY, COMPLETENESS OR SUITABILITY OF ANY OUTPUT, OR OF THE OUTCOMES FROM FOLLOWING ANY SUGGESTION OR RECOMMENDATION GENERATED BY THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR INDEPENDENTLY CHECKING AND VERIFYING ANY OUTPUT BEFORE PUBLICATION OR USE, AND FOR ANY ACTION TAKEN IN RESPONSE TO IT.
1.7. Agents and Assistants. Agents (which may also be referred to as “assistants” or similar terms) are AI Tools that End Users may direct to take certain actions on behalf of Customer (“Agents”). These actions are not Output. Agents may be created by Customer, provided by Bettermode, or provided by third parties as Integrations. Customer is responsible for its configuration and use of Agents, including determining what inputs Agents may access, whether any actions Agents may take are appropriate for that use and appropriately supervising such actions. Where Customer configures an Agent to act without human review, Customer authorizes those actions, and review and override controls are available to Customer at all times. Customer must not use Agents in a manner that either violates third-party rights or law or is intended, or would reasonably be expected, to do so.
1.8. Integrations. Customer may authorize the Service to connect to Customer systems, third-party services, data sources, application programming interfaces (APIs), tools model context protocol (MCP) and other integration protocols (“Integrations”). Customer authorizes Bettermode to access, retrieve, transmit, process and, where configured, submit Customer Data to and/or through such Integrations in the provision of the Services and to perform Customer-authorized actions. Integrations that Customer enables are not Sub-Processors (as defined in the Data Processing Agreement), and Customer is responsible for its arrangements with the providers of those Integrations.
2. Bettermode Technology.
In connection with providing the Service, Bettermode and its licensors shall operate and support the hosted environment used by Bettermode to provide the Service, including the Bettermode Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Bettermode. As used herein, “Bettermode Technology” means all of Bettermode’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Bettermode in providing the Service, including any and all updates, modifications, improvements and derivatives thereto and thereof.
3. Ownership.
3.1. Bettermode acknowledges and agrees that as between Customer and Bettermode, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein. Customer hereby grants to Bettermode a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data solely in connection with providing the Service to Customer, and for improving and developing the Service (provided that Bettermode may only use deidentified and aggregated Customer Data to improve or develop the Service). Bettermode may analyze Customer Data, and data of other customers, to create deidentified and aggregated statistics or data that do not identify Customer or any individual, household, user, browser, or device and Bettermode may during and after the Subscription Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility.
3.2. Customer acknowledges and agrees that, as between Bettermode and Customer, all right, title and interest in and to the Service, the Bettermode Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Bettermode or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Bettermode Technology other than a limited right to use the Service in accordance with this Agreement. No right or license is granted hereunder to Customer under any of Bettermode’s trademarks, service marks, trade names or logos. Customer shall not remove any Bettermode trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.
4. Fees; Payments; Taxes.
4.1. Fees. Customer shall pay Bettermode the fees set forth in the Order Form and make such payment in accordance with the instructions and schedule set forth in the Order Form. If the Order Form does not specify payment terms, the payment terms shall be net 30 days from receipt of invoice.
4.2. Increases. Bettermode reserves the right to increase its fees upon at least 90 days’ advance notice (email or otherwise) to Customer; provided, however, that fee increases will not take effect until the start of the next Renewal Term.
4.3. Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service and which are payable under applicable laws. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Bettermode’s income), which may be invoiced by Bettermode from time-to-time.
4.4. Suspension of Service. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, Bettermode may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full and, if such payment is 60 days or more overdue, cancel the Services. Any such suspension or cancellation shall not relieve Customer of its payment obligations under this Agreement and is without prejudice to any other remedies available to Bettermode.
5. Term & Termination.
5.1. Term, Termination and Automatic Renewal. Customer’s initial subscription term for the Service commences on the date Customer first accepts this Agreement (the “Effective Date”) and, unless sooner terminated as set forth herein, will continue for the period specified in the Order Form (the “Initial Subscription Term”). Thereafter, unless otherwise expressly provided for in the applicable Order Form, on the expiry of the Initial Subscription Term or any subsequent Renewal Term (as defined below), the term of the Agreement shall be automatically renewed for the same period of the Initial Subscription Term (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the Initial Subscription Term or any Renewal Term hereof. Collectively, the Initial Subscription Term and any subsequent Renewal Terms are referred to as the “Subscription Term”. Notices to Bettermode shall be sent to [email protected].
5.2. Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and, where such breach is curable, has not cured such breach within 30 days’ receipt of written notice thereof.
5.3. Effects of Subscription Termination; Survival. Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Bettermode shall no longer provide access to the Service to Customer, (b) Customer shall cease using the Service, and (c) Bettermode shall make Customer Data available for export in accordance with Section 6.1 and shall delete Customer Data in accordance with the Data Processing Agreement. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3-10.
6. Customer Data.
6.1. Data Generally. All account and billing information, and all data and information which the Customer, or its employees and any other person who it permits to use its instance of the Service (“End Users”) inputs into the Service (collectively, “Customer Data”) will not be used by Bettermode except as permitted herein. Bettermode agrees to protect Customer Data with no less than industry-standard information security tools and procedures. Bettermode may create anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and Bettermode may during and after the Subscription Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. Bettermode shall operate the Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Personal Data (as defined in the Data Processing Agreement) included in Customer Data will only be processed in accordance with Bettermode’s Data Processing Agreement at https://bettermode.com/legal/data-processing-agreement (“Data Processing Agreement”). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Bettermode will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Bettermode will have no obligation to maintain or provide any Customer Data, and as provided in the Data Processing Agreement will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
6.2. Additional Customer Responsibilities. Customer is solely responsible for all Customer Data that it has itself uploaded on the Bettermode’s platform excluding the content uploaded by the End Users of the Customer. Bettermode does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not upload or otherwise make available to Bettermode any Customer Data that: (a) constitutes an infringement, misappropriation, or violation of all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights; (b) violates this Agreement, including, without limitation, any applicable laws, rules, or regulations; (c) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, sexually explicit, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual, promotes illegal activities or contributes to the creation of weapons, illegal materials, or is otherwise objectionable or illegal in any way; (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interferes with or disrupts the Service or servers or networks connected to the Service; (f) constitutes protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or any regulation, rule or standards issued thereunder, or constitutes similarly protected sensitive personal information under any applicable state, rule or regulation; (g) is harmful to minors in any way; (h) constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (i) causes Bettermode to violate any applicable law, rule or regulation, including those regarding the export of technical data. Bettermode reserves the right, but has no obligation, to review any Customer Data, investigate any claim related to Customer Data, or take appropriate action, in its sole discretion, against the person (Customer or End Users of the Customer) at the origin of the content that creates any liability for Bettermode. Such actions may include removing, exercising any indemnity and termination rights contained herein, and reporting such Customer Data to law enforcement authorities.
7. Service Warranty; Disclaimer.
7.1. Service Warranty. Bettermode represents and warrants that the Service, when used in accordance with the applicable end-user instructions and manuals (the “Documentation”), will conform to the Documentation in all material respects. Bettermode does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. Bettermode makes no warranty regarding features or services provided by any third parties. Bettermode retains the right to modify its services and the Bettermode Technology in its sole discretion. Customer’s sole remedy for Bettermode’s breach of the warranty in this paragraph shall be that Bettermode shall remedy the applicable error, or if Bettermode is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Service for the Subscription Term during which the breach of warranty occurred.
7.2. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1, BETTERMODE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT (subject to the provisions of Section 9), (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
8. Limitations of Liability.
8.1. Disclaimer of Indirect Damages. EXCEPT FOR (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) ITS INDEMNIFICATION OBLIGATIONS; AND (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.2. Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO BETTERMODE DURING THE THEN-CURRENT SUBSCRIPTION TERM (EXCLUDING INDEMNIFICATION OBLIGATIONS, NON-INFRINGEMENT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS AND CLAIMS ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD).
8.3. Data Claims. NOTWITHSTANDING THE EXCLUSION FOR BREACH OF CONFIDENTIALITY OBLIGATIONS IN THE PARENTHETICAL IN SECTION 8.2, ALL CLAIMS ARISING OUT OF OR RELATING TO THE SECURITY, CONFIDENTIALITY OR PROCESSING OF CUSTOMER DATA OR PERSONAL DATA, HOWEVER CHARACTERIZED, INCLUDING CLAIMS UNDER SECTION 6 (CUSTOMER DATA) AND UNDER THE DATA PROCESSING AGREEMENT, ARE SUBJECT TO THE LIMIT SET OUT IN SECTION 8.2.
8.4. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT BETTERMODE HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9. Indemnification.
9.1. Bettermode Indemnification. Bettermode shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs)(collectively, “Claims”) to the extent the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right.
9.2. Indemnity Cap. Notwithstanding Section 8.2, Bettermode’s total liability under Section 9.1, including the cost of defense and any settlement or award, shall not exceed the total amount of fees paid by Customer to Bettermode in the twelve (12) months preceding the Claim.
9.3. Customer Indemnification. Customer shall defend, indemnify and hold harmless Bettermode and its directors, officers, employees, agents and providers (“Bettermode Indemnified Parties”) from and against any Claims based on the Customer Data effectively uploaded by the Customer, excluding any such Claim to the extent resulting from Bettermode’s use of the Customer Data in violation of this Agreement.
9.4. Indemnification Process. As conditions of the indemnification obligations in Sections 9.1 and 9.3 above: (a) the applicable Customer Indemnified Party or Bettermode Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
9.5. Exclusions. Bettermode’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service not strictly in accordance with the Documentation, Bettermode’s instructions, and this Agreement; (b) any modification, alteration or conversion of the Service not created or approved in writing by Bettermode; (c) any combination of the Service with any computer, hardware, software or service not provided by Bettermode; (d) Bettermode’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9.1 above, Bettermode may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. Bettermode’s obligations in this Section 9 shall be Bettermode’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10. Confidentiality.
10.1. Definitions. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Subscription Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; and (ii) the Service and Bettermode Technology shall be deemed Confidential Information of Bettermode, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.
10.2. General Obligations. Each Party agrees that it will during the Subscription Term and thereafter for a period of five (5) years (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms
and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10.3. Return or Destruction. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information as stored in any medium, upon the termination of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination. Notwithstanding the foregoing, nothing in this Agreement shall require the Receiving Party to alter, modify, delete or destroy back-up or archival records made in the ordinary course of business by the Receiving Party using the Receiving Party’s standard back-up systems, provided that Confidential Information embodied in such back-up or archival records shall remain subject to the confidentiality and non-use obligations set forth in this Agreement.
10.4. Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Bettermode with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Bettermode may use, disclose and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
11. Miscellaneous.
11.1. Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by either Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), except that either Party may assign or transfer this Agreement without the other Party’s consent (a) to any of its affiliates, or (b) upon a change of control of a Party, a sale of all or substantially all assets of that Party, or by operation of law, in each case, by providing the non-assigning Party with prior written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement. Customer understands and agrees that, in the event its assignment of the Agreement results in a material change in Service usage, Bettermode may require a renegotiation of Service pricing.
11.2. Entire Agreement; Precedence; Amendment. This Agreement (including the Order Form) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. In the event of conflict between the terms of this Agreement and the Order Form, the Order Form will control and take precedence only with respect to pricing, payment and other such commercial matters that do not affect the Parties’ fundamental responsibilities and risk allocations herein. Each Party hereby rejects the inclusion of any pre-printed terms and conditions on any purchase orders or other such contract documents. Bettermode may update this Agreement, including the Data Processing Agreement and any policy incorporated by reference, by giving Customer at least thirty (30) days’ notice in accordance with Section 11.3 or through the Service, and by publishing the updated version with a revised “Last Updated” date. Each update takes effect at the end of that notice period and does not apply to any Dispute arising from events occurring before it takes effect. If Customer does not agree to an update, Customer may terminate this Agreement by notice to Bettermode before the update takes effect, in which case Bettermode will refund any prepaid fees for the unused remainder of the then-current Subscription Term. Customer’s continued use of the Service after an update takes effect constitutes acceptance of it. Bettermode may give shorter notice where a change is required by applicable law, and no update to the Data Processing Agreement will reduce the overall level of protection it provides for Personal Data.
11.3. Notices. Bettermode may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account with a copy to the email address indicated on the Order Form, and such notices shall be effective upon confirmation of transmission to Customer. Customer may give any notices issued in connection with this Agreement by email to Bettermode at [email protected], and such notices shall be effective upon confirmation of transmission to Bettermode.
11.4. Force Majeure. Neither Party will be liable to the other Party for any failure or delay in performance by circumstances beyond its control, including, fire, labor difficulties, telecommunication failures, Internet unavailability, governmental actions or terrorism, provided that the Party seeking to rely on such circumstances gives written notice of such circumstances to the other Party and uses reasonable efforts to overcome such circumstances.
11.5. Choice of Law. Any question, claim or controversy arising out of or related to this Agreement (a “Dispute”) will be governed by and construed in accordance with the laws of Delaware if Customer is an entity incorporated in the United States of America or otherwise of the Province of Ontario, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11.6. Disputes. In the event of any Dispute, either Party may, at any time, deliver notice to the other Party of its intent to submit the Dispute to the courts of Delaware if Customer is an entity incorporated in the United States of America or otherwise of the Province of Ontario, Canada, including provisions relating to personal data of the Agreement and the Data Processing Agreement.
11.7. Claims of Infringement. Bettermode respects Customer’s copyrights and other intellectual property rights and those of other third parties. If Customer believes in good faith that Customer’s copyrighted work has been reproduced on the Service without Customer’s authorization in a way that constitutes copyright infringement, Customer may notify our designated copyright agent by mail to: Bettermode Inc., Attn: Bettermode Copyright Agent, 155 Queens Quay East, Suite 200, Toronto, ON M5A 0W4 / [email protected]. Please provide the following information to Bettermode’s Copyright Agent: (a) the identity of the infringed work, and of the allegedly infringing work; (b) Customer’s name, address, daytime phone number, and email address, if available; (c) a statement that Customer has a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (d) a statement that the information in the notification is accurate and, under penalty of perjury, that Customer is authorized to act on behalf of the owner; and (e) Customer’s electronic or physical signature. Bettermode will take whatever action, in its sole discretion, it deems appropriate, including the removing the allegedly infringing work from the Service.
11.8. Relationship of the Parties. 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 or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.9. Waiver. No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.10. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court or tribunal of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
11.11. Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.