Platform Terms and Conditions
Effective date: February 6, 2024
In the event of any discrepancies or conflicts between these General Platform Terms and Conditions and any specific terms and conditions signed as part of an agreement between a customer and Chiavi, Inc. (Customer Agreement), the specific terms and conditions of that Customer Agreement shall take precedence and govern.
1. Services
1.1 Subject to all terms and conditions of this Agreement, Chiavi hereby grants Customer and its Authorized Users (defined below) a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use the Platform (as defined by the Customer Agreement) provided by Chiavi solely for (i) Customer’s internal business purposes and (ii) other purposes separately authorized by Chiavi in writing. The Platform is subject to modification from time to time at Chiavi’s sole discretion for any purpose deemed appropriate by Chiavi. Chiavi will use reasonable efforts to give Customer prior notice of material modifications.
1.2 Subject to all terms and conditions of this Agreement, Chiavi shall use commercially reasonable efforts to (a) make the Platform available to Customer in accordance with the terms and conditions hereof and (b) perform the Professional Services (if any) described in an applicable Customer Agreement. Notwithstanding the foregoing, Chiavi may suspend Customer’s access to the Platform (i) for scheduled or emergency maintenance or (ii) in the event Customer is in material breach of this Agreement, including failure to pay any amounts due to Chiavi. Chiavi will use commercially reasonable efforts to provide notice to Customer prior to any scheduled maintenance.
2. Restrictions and Responsibilities
2.1 Customer will not (a) use the Platform in a manner that may allow any person or entity other than an Authorized User to access or use the Platform or (b) otherwise permit unauthorized access to the Platform. An “Authorized User” is (i) any employee of Customer, or (ii) mutually-agreed-to end user, contractor, or client of Customer who has been expressly authorized by Chiavi to access the Platform and who is subject to an agreement at least as restrictive as this Agreement. Customer shall be fully responsible for each Authorized User’s use of the Platform. Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Platform, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Platform or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) disassemble, decompile, reverse engineer, or translate any software related to the Platform, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (iv) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof; (v) interfere with, modify, disrupt or disable features or functionality of the Platform, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Platform; (vi) provide use of the Platform on a service bureau, rental or managed Platform basis or permit other individuals or entities to create Internet "links" to the Platform or "frame" or "mirror" the Platform on any other server, or wireless or Internet-based device; or (vii) access the Platform in order to build a similar or competitive product or service.
2.2 Customer will cooperate with Chiavi in good faith in connection with the performance of this Agreement, including by making available such personnel (for questions and answers) and information as may be reasonably required in addition to taking such other actions as Chiavi may reasonably request. Customer will cooperate with Chiavi in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Platform.
2.3 Customer acknowledges and agrees that the Platform operates on or with or using APIs and/or other services operated or provided by Customer or third parties (“Independent Services”). Chiavi is not responsible for the operation of any Independent Services nor the availability or operation of the Platform to the extent such availability and operation is dependent upon Independent Services. Customer is solely responsible for procuring any and all rights necessary for it to access Independent Services and for complying with any applicable terms or conditions thereof. Customer agrees to review each third party’s terms and conditions listed in Section 11 below (“Third Party Terms”) and hereby authorizes Chiavi to accept and execute the Third Party Terms on behalf of Customer in order for Chiavi to provide the Platform to Customer. Customer remains responsible for all fees, costs and/or expenses arising out of Customer’s use of Independent Services. In the event that a third party cost is charged to Chiavi, Customer agrees to reimburse Chiavi for all such costs. Chiavi does not make any representations or warranties with respect to Independent Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider of Independent Services is solely between Customer and such third party provider and is governed by such third party’s terms and conditions. Customer acknowledges that certain Platform features will require Customer to provide Chiavi with Customer’s access credential (“Credentials”) to Independent Services. Credentials are the Confidential Information of the Customer.
2.4 Customer hereby agrees to indemnify and hold harmless Chiavi against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from Customer’s use of Platform that is outside the purpose, scope or manner of use authorized by this Agreement.
2.5 Customer will be responsible for maintaining the security of Customer’s account passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent.
2.6 Chiavi is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion as well as display Customer’s name and logo on its corporate website.
2.7 Customer will be responsible for (a) the accuracy, quality and legality of the Customer Materials (as defined below), including the means by which Customer acquired the Customer Materials, and (b) Customer’s use of Customer Materials in connection with Customer’s use of the Platform.
2.8 Customer hereby grants Chiavi, including its employees and agents, the right to access, review, and, if necessary, modify certain Customer Materials for the purpose of fulfilling services and delivering products as covered by this Agreement.
3. Confidentiality
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to those employees and agents with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Chiavi may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Platform’s performance.
3.3 Customer acknowledges that Chiavi does not wish to receive any Confidential Information from Customer that is not necessary for Chiavi to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Chiavi may reasonably presume that any unrelated information received from Customer is not Confidential Information.
4. Intellectual Property Rights
4.1 This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Platform, or any intellectual property rights contained therein. Except as expressly set forth herein, Chiavi alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Platform or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Platform, which are hereby assigned to Chiavi. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
4.2 Chiavi will receive and process materials provided by or on behalf of Customer and/or Customer’s end users of the Platform (“Customer Materials”) to perform its obligations under this Agreement. Customer hereby authorizes Chiavi to use and disclose the Customer Materials only if the Customer Materials are in aggregate and anonymized form (i.e., data aggregated from various Chiavi clients’ use of the Platform, but not specifically identifying Customer or end user of Customer). If Chiavi receives any notice or claim that any Customer Materials, or Platform performed with respect to any Customer Materials, may infringe or violate rights of a third party (a “Claim”), Chiavi may (but is not required to) suspend the Platform hereunder with respect to that Customer Materials, and Customer will indemnify Chiavi from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such infringement Claim.
4.3 Chiavi shall defend, indemnify and hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Platform of any United States patent, trademark, copyright, trade name, or any other intellectual property right, or any misappropriation of any trade secret. If Customer’s use of the Platform is, or in Chiavi’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Chiavi may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Platform; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Term which was paid by Customer but not rendered by Chiavi. The foregoing indemnity obligations do not apply with respect to portions or components of the Platform to the extent (i) created in whole or in part from Customer’s specifications, (ii) modified by Customer, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) Customer’s use of is not strictly in accordance with this Agreement and all related documentation. THIS SECTION 4.3 SETS FORTH CHIAVI’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
4.4 The indemnification obligations contained in Sections 2.4, 4.2, and 4.3 shall be excused to the extent that the indemnifying party has not been (i) promptly notified by the indemnified party of any and all threats, claims and proceedings related to the indemnified claim, or (ii) given reasonable assistance or the opportunity to assume sole control over defense and settlement.
5. Payment of Fees
5.1 Customer will pay Chiavi all fees set forth on each applicable Customer Agreement (the “Fees”). All payments will be made in accordance with the Payment Schedule and the Method of Payment on such Customer Agreement. All payments are non-refundable.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Chiavi’s net income) unless Customer has provided Chiavi with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Chiavi on account thereof.
6. Term Termination
6.1 Subject to earlier termination as provided below, the Term is specified in each applicable Customer Agreement. This Agreement will automatically terminate upon expiration of the last Customer Agreement in effect.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if such breach is capable of being cured and the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. For clarity, termination of this Agreement will automatically terminate all Customer Agreements.
6.3 Sections 2.1, 2.4, 3, 4, 5 (only to the extent any Fees incurred through the termination date remain unpaid), and 6 through 10 shall survive termination.
7. Warranty Disclaimer
EXCEPT FOR THOSE EXPRESS WARRANTIES SET FORTH HEREIN, ANYTHING PROVIDED BY CHIAVI IN CONNECTION WITH THIS AGREEMENT IS PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, AND CHIAVI HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8. Limitation of Liability
8.1 IN NO EVENT WILL CHIAVI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CHIAVI HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. CHIAVI’S TOTAL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID TO CHIAVI HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 The limitations contained in Section 8.1 shall not apply to indemnification obligations contained in this Agreement or any breach of Sections 3 (Confidentiality) or 4 (Intellectual Property Rights).
9. U.S. Government Matters
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Platform or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
10. Miscellaneous
10.1 This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 10.1 will be null and void.
10.2 If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.3 This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws’ provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
10.4 The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.5 Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Customer Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
10.6 No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.7 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement (in the absence of a specific Customer Agreement).
10.8 Neither party shall 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 is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
10.9 Chiavi may use the services of subcontractors for performance of services under this Agreement, provided that Chiavi remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Platform as required under this Agreement.
10.10 The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
11. Third Party Terms
11.1 In order to provide a consistent and simple onboarding experience, Chiavi may accept terms and conditions from Independent Services it works with on behalf of Customer. A current list of these Third Party Terms you have authorized us to accept on your behalf can be found below. Chiavi will notify Customer prior to accepting any Third Party Terms on Customer’s behalf. Chiavi will also notify Customer if there are any fees associated with these third party services at time of acceptance.