TERMS OF SERVICE
Effective Starting: September, 15 2021
As used in this TOS, the definitions below shall apply. Definitions for other defined terms are set forth elsewhere in this TOS.
1.1. “TOS” means this Software as a Service (SaaS) Terms of Service, and incorporates any referenced policies, schedules, exhibits and attachments and governs the terms of each Order Form entered into by Advocat AI and Client.
1.2. “Advocat AI” means Advocat AI., a Delaware Corporation.
1.3. “Advocat AI Software” or “Software” means the software modules made available by Advocat AI, as identified in an Order Form, to be accessed by Client over its internet connection when using the Services.
1.4. “Advocat AI System” or “System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, Hosting Sites, and other facilities that Advocat AI hosts, maintains and uses to provide Users with access to and use of the Software and Services.
1.5. “Client” means the entity or person purchasing Services from Advocat AI pursuant to and as indicated in an Order Form.
1.6 “Force Majeure Event” has the meaning stated in Section 10.3.
1.7 “Hosting Site” means the Internet-connected hosting facility from which the System is accessed, as identified in an Order Form, as it may be modified by Advocat AI from time to time.
1.8 “Order Form” means an agreement pursuant to which Client purchases Services from Advocat AI, which references this TOS and which is governed by this TOS. Each reference to an Order Form herein shall mean such Order Form as governed by, and inclusive of, (i) the terms and conditions set forth in this TOS and (ii) for Order Forms including a purchase of the Custom Smart Values service, the additional terms and conditions set forth in the Custom Smart Values Terms of Service located on Advocat AI’ website at: https://www.advocattechnologies.com/terms?hsLang=en
1.9 “Services” means the services Advocat AI agrees to provide to Client, as identified in an Order Form.
1.10 “Users” are employees, agents and third party contractors of Client that have been designated or permitted by Client to access the Advocat AI System.
ADVOCAT AI SERVICES
2.1 Services. Advocat AI shall provide the services described in each Order Form (“Services”).
2.2 Service Levels. Subject to the terms and conditions of this TOS, and until termination of the applicable Order Form in accordance with its terms, Advocat AI shall provide Client with the Services, diligently, in an accurate and timely manner, in accordance with any applicable time or standards expressly set forth in this TOS (including any Schedules), and in accordance with the service level commitments set forth in Schedule A attached hereto. Client agrees that Advocat AI may reasonably amend these commitments from time to time on reasonable advanced notice.
2.3 System Changes. Advocat AI will use commercially reasonable efforts to resolve any failure, malfunction, defect, problem, or non-conformity in the Systems identified by Client or otherwise brought to Advocat AI’ attention. Advocat AI will not make any changes to the System that are likely to have a materially adverse impact on Client’s access to or use of the Systems or significantly increase Client’s costs without first obtaining Client’s prior written approval, which shall not be unreasonably withheld, provided that Advocat AI may make temporary changes required by an emergency if Advocat AI is unsuccessful despite reasonable efforts at contacting Client to obtain its approval. If any such changes are requested by Advocat AI, Advocat AI will provide to Client: (i) a detailed, written report on the effect the proposed changes will have on the Systems then currently in use by Client, and (ii) any tools that Advocat AI develops and makes available to its other customers to assist Client with implementing such changes.
2.4 Security and Access. With regard to the System and those locations where any Client Data is stored under the control of Advocat AI, Advocat AI will maintain and enforce safety, physical and computer system security procedures and safeguards that are at least equal to industry standards for such types of service locations. Advocat AI will use its best efforts to rectify promptly any such breaches that occur.
CLIENT’S UNDERTAKINGS AND ACKNOWLEDGMENTS
3.1 Compliance. Client shall use the System and Services in compliance with and subject to this TOS.
3.2 Proprietary Rights. Client acknowledges that the System, Software, and accompanying materials (“Materials”) embody valuable confidential and proprietary information. Client agrees that the System, Software and Materials (including, but not limited to, all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are the exclusive property of Advocat AI, or of third parties from whom Advocat AI has obtained rights to use certain materials contained therein. Advocat AI and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the System, Software and Materials. Client therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by the System; (ii) it shall treat the System, Software and Materials in confidence; (iii) it shall not use, copy, or disclose the same, nor permit any of its personnel to do so, except as specifically authorized by this TOS; and (iv) it shall use reasonable care to safeguard the confidentiality of these items. Except for the limited rights of use as expressly granted herein, the ownership and all right, title and interest in and to the Software reside in Advocat AI.
LICENSED SOFTWARE; LIMITS ON USE
4.1. Limited License to Client. Advocat AI hereby grants Client a personal, non‑exclusive, non‑transferable, and non‑sublicensable license for the term of the applicable Order Form, under all of Advocat AI’ applicable intellectual property, to access and use the System and Services via the Internet, in accordance with this TOS.
4.2. Limits on Use of System. Client shall not, and shall cause its Users not to:
(a) create or enable the creation of derivative works, modifications, or adaptations of the System, or attempt to recompile, reverse engineer or disassemble the System;
(b) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the System or portions or content thereof (except as made available by Advocat AI as features of the System);
(c). intentionally interfere with the functionality of the System by (i) uploading, storing, e‑mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, Trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the System; (ii) modifying the System or interfering or attempting to interfere with the proper operation of the System or the use of the System by third parties, including through the use of any device, software or routine; or (iii) using the System to disrupt the servers or networks connected to the Web server; or
(d). violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission through the System of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content.
FEES; TAXES; PAYMENTS
5.1 Fees. The fees, payment terms and accepted methods for payment are set forth on the applicable Order Form. Upon each renewal of an Order Form (whether automatic or other renewal), the fee rates paid by Client in the preceding term will increase by 6% for such renewal term. Advocat AI reserves the right to deny Client access to the System upon its failure to pay any amount due, which failure persists after the Section 7.2 cure period, except where (i) there is a bona fide dispute over the amount due and (ii) Client has paid all undisputed amounts.
5.2 Taxes. Client is responsible for all sales, use and all other taxes that are levied or imposed by reason of this TOS and applicable Order Form, the System or the transactions contemplated herein, other than taxes imposed on Advocat AI’ net income.
5.3 Late Payments. Amounts not paid when due shall be subject to interest at one and one-half percent (1‑1/2%) per month or, if less, the maximum rate of interest allowed by law, calculated from the due date. If any amount is not paid when due, Advocat AI shall be entitled to recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorney’s fees).
OWNERSHIP OF SYSTEM/CLIENT RECORDS
6.1 Advocat AI System. The System is the exclusive and confidential property of Advocat AI and its third-party licensors, and Client has no right to use or access the System for any purpose other than utilizing the Software and Services as set forth herein.
6.2 Client Data. All Client records and data uploaded onto the System by or on behalf of Client (the “Client Data”) are the property of Client. Advocat AI shall have no right to copy, transfer, sell, disclose, or license the Client Data for any purpose, except to serve Client [pursuant to the applicable Order Form]. Advocat AI shall treat such Client Data as confidential and will not disclose the Client Data, other than to employees on a need-to-know basis and to its third-party providers (e.g., its Hosting Site) under obligations of confidentiality. Advocat AI shall use industry standard security measures to maintain the security of the Client Data. Notwithstanding the foregoing, Advocat AI may disclose the Client Data to a third party, including any government authority, if required by law, regulation, court proceedings or subpoena; provided that, unless prohibited by law, Advocat AI shall notify Client of the requested disclosure and shall cooperate to assist Client in maintaining the confidentiality of such Client Data.
6.3 Confidentiality. (a) “Confidential Information” means any information obtained by the receiving party from or on behalf of the disclosing party that relates to the past, present or future business activities of the disclosing party or its subsidiaries or affiliates, or their respective employees, customers or third party suppliers or contractors, including the terms and conditions of this TOS, information exchanged in the course of negotiations, any Schedule, any Order Form, and any information relating to the applicable entity’s (or person’s) plans, pricing, methods, methodologies, processes, financial data, lists, intellectual property rights, customer information, apparatus, statistics, programs, research, development, or information technology. Confidential Information does not include information that the receiving party can demonstrate: (i) is currently in the public domain; (ii) was previously known to the receiving party free from any obligation to keep it confidential; (iii) is publicly disclosed by or on behalf of the disclosing party at any time; (iv) is independently developed by the receiving party without any access to or use of Confidential Information of the disclosing party; or (v) is rightfully obtained by the receiving party from a third party lawfully in possession of the Confidential Information and who is not bound by confidentiality obligations to the disclosing party.
(b) The receiving party will hold all Confidential Information of the disclosing party in trust and confidence for the disclosing party and, except as set forth in this TOS or as otherwise may be authorized by the disclosing party in writing, the receiving party will not disclose to any person, firm or enterprise, or use for its own benefit, any Confidential Information of the disclosing party. The receiving party will treat all Confidential Information of the disclosing party with the same degree of care that the receiving party treats its own confidential or proprietary information, but in no event less than reasonable care.
(c) The receiving party may disclose Confidential Information of the disclosing party to the receiving party’s employees, and to any of the receiving party’s contractors who are bound to the receiving party by confidentiality obligations substantially equivalent to those set forth in this Section, solely as required in order for the receiving party to perform under this TOS, or in the case of Client, in order to access and use materials.
(d) Each party may retain copies of the Confidential Information, as applicable, to the extent required to comply with applicable legal and regulatory requirements. Such Confidential Information, as applicable, will remain subject to the terms and conditions herein. Otherwise, at the request and option of the disclosing party and in the event of termination or expiration of this TOS (or any part thereof), the receiving party agrees to promptly: (a) return to the disclosing party the Confidential Information, as applicable; or (b) destroy or permanently erase the Confidential Information from all forms of recordation, to the extent reasonably feasible, and, if requested by the disclosing party, acknowledge in writing that it has done so.
(e) The Parties acknowledge and agree that any disclosure of Confidential Information will in no way be construed as an assignment, transfer, or conveyance of title to or ownership rights in such Confidential Information.
(f) In the event of a breach or threatened or attempted breach of the receiving party’s obligations with respect to Confidential Information, the disclosing party may have no adequate remedy in money or damages and, accordingly, may immediately seek an injunction against such breach.
(g) The receiving party may disclose Confidential Information of the disclosing party if required to do so under applicable law, rule or order provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing party with prior written notice of the required disclosure so that the disclosing party may seek a protective order or other appropriate remedy, and provided further that the receiving party discloses no more Confidential Information of the disclosing party than is reasonably necessary in order to respond to the required disclosure.
6.4 Client Warranty. Client represents and warrants that it owns all Client Data and has full authority to have them uploaded onto and maintained on the System.
6.5 Advocat AI Warranty. Advocat AI represents and warrants that: (i) the System will contain the functions and perform substantially as described in the applicable Order Form; and (ii) Advocat AI shall comply with all applicable laws and regulations. Advocat AI’ only liability, and Client’s exclusive remedy, for any breach of the foregoing warranties is that, if reported to Advocat AI in writing, Advocat AI will correct the defect.
6.6 Personal Data. The terms of the Data Processing Addendum, located on the Advocat AI’ website at https://Advocat AI.com/data-processing-addendum/ (the “DPA”), shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Advocat AI solely on behalf of Client, if any; (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Advocat AI solely on behalf of Client, if any; and/or (iii) the collection, use or disclosure of personal information that is subject to The Personal Information Protection and Electronic Documents Act (“PIPEDA”) by Advocat AI solely on behalf of Client, if any.
TERMINATION; DEFAULT; REMEDIES
7.1 Defaults. Each of the following shall constitute a default: (i) Client’s failure to pay any sum due hereunder; (ii) a party’s failure to perform any of its material obligations hereunder; or (iii) a party makes a representation or warranty that is materially false or misleading when made.
7.2 Termination and Other Remedies. Notwithstanding anything contained in this TOS to the contrary, (i) with respect to a default under Section 7.1(i), upon Client’s failure to cure such default within ten (10) days after written notice of default, or (ii) with respect to all other defaults, upon the defaulting party’s failure to cure such default within thirty (30) days after written notice of default, the non-defaulting party may take any or all of the following actions: (a) terminate an Order Form upon written notice, (b) declare all amounts due to be immediately due and payable, and/or (c) exercise any of its other rights or remedies hereunder and under applicable law (except to the extent expressly excluded hereunder). In the event that Client elects to terminate an Order Form prior to the expiration of its then current term, and such termination is not permitted by this TOS, then Advocat AI shall not be obligated to refund any portion of the fees already paid by Client for the then-current term of the applicable Order Form(s). In the event that Client elects to terminate an Order Form due to Advocat AI’ uncured default under Section 2.4, 6.2 or 6.3, Advocat AI shall, at the request of Client, refund a pro-rata portion of the fees paid in advance by Client under the terminated Order Form, such pro-rata portion being determined based on the time remaining during the then-current term of the terminated Order Form. The remedies contained in this Section 7 are cumulative and in addition to all other rights and remedies available hereunder, by operation of law, or otherwise, except as expressly excluded hereunder. The termination of an Order Form for any reason shall not affect or impair any rights, obligations or liabilities of either party that may accrue prior to such termination or that, under the terms of such Order Form, continue after termination.
7.3 Actions Due Upon Termination. Upon termination of an Order Form for any reason: (i) Client shall promptly pay to Advocat AI all outstanding amounts due and shall return copies of all Advocat AI materials; (ii) all rights granted by Advocat AI under such Order Form shall cease and Client shall immediately cease any use of the System and Services; and (iii) upon payment in full of all amounts due, and upon Client’s request within 90 days after the effective date of termination or expiration of such Order Form, Advocat AI shall return or destroy the Client Data related to such Order Form then stored on the System. Notwithstanding the foregoing, if an Order Form terminates for any reason, Advocat AI (i) may retain one copy of Client Data solely for archival, audit, disaster recovery, legal or regulatory purposes and (ii) will not be required to search archived electronic back-up files of its computer systems for Client Data in order to purge the Client Data from its archived files; provided, however, that Advocat AI must (A) maintain confidentiality of the retained Client Data under the applicable Order Form as if such Order Form were still in effect, and (B) not use the retained Client Data for any other purpose.
LIMITATION OF LIABILITY AND DISCLAIMERS
8.1 Reporting Errors. Client shall advise Advocat AI in writing of any material error or omission in the Services, System or Materials reasonably promptly after discovery thereof by Client.
8.2 Misuse of Passwords. Client shall maintain the confidentiality of its passwords, regularly change them, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefor and promptly notify Advocat AI thereof.
8.3 Limitation of Liability; Exclusion of Consequential Damages. EXCEPT FOR A BREACH OF SECTIONS 3.2, 4.2, 6.1 or 6.3, AND REGARDLESS OF THE FORM OF ACTION, IN NO EVENT WILL EITHER PARTY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF REPUTATION OR COSTS OF SUBSTITUTE SERVICES) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE ARISING OUT OF OR RELATING TO THE SERVICES, THE SYSTEM, AN ORDER FORM OR ITS TERMINATION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. FURTHER, THE MAXIMUM AGGREGATE LIABILITY OF ADVOCAT AI (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS) TO CLIENT FOR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING NEGLIGENCE) SHALL, EXCEPT FOR ADVOCAT AI’ OBLIGATION TO INDEMNIFY CLIENT PURSUANT TO SECTION 9, BE LIMITED TO THE FEES PAID BY CLIENT TO ADVOCAT AI IN THE YEAR IN WHICH THE CLAIM AROSE.
8.4 Warranty Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SYSTEM, ITS INTERFACES, ANY RELATED EQUIPMENT, THE SERVICES AND ANY MATERIALS ARE PROVIDED “AS IS”. ADVOCAT AI AND ANY THIRD-PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON‑INFRINGEMENT OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ADVOCAT AI MAKES NO REPRESENTATION OR WARRANTY (I) AS TO THE SYSTEM OR THE SERVICES; (II) AS TO THE RESULTS TO BE ATTAINED BY CLIENT OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SYSTEM; (III) AS TO THE LIFE OF ANY URL USED IN THE SYSTEM; (IV) THAT ACCESS TO THE HOSTING SITE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE OR ERROR‑FREE; OR (V) THAT ALL USES THAT CAN BE MADE OF THE SYSTEM OR SERVICES COMPLY WITH APPLICABLE LAW; RATHER, IT IS CLIENT’S RESPONSIBILITY TO CONFORM ITS USE OF THE SYSTEM AND SERVICES WITH THE LAW. CLIENT ACKNOWLEDGES THAT CERTAIN SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SYSTEM. EACH PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER EXCEPT AS SPECIFICALLY SET FORTH IN THE APPLICABLE ORDER FORM.
9.1 Advocat AI’ Indemnification of Client. Advocat AI shall defend, hold harmless and indemnify Client (and any party controlling, controlled by or under common control with Client), and their respective directors, officers and employees (the “Client Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party against Client Indemnified Parties to the extent that it is based on a claim that the Services (other than any third party software, service or component) infringe any copyright, trademark, or trade secret right, and Advocat AI shall pay all costs incurred by and damages finally awarded against Client. Such indemnity, however, excludes any claims that arise or result from Client’s (i) misuse or alteration of the Services or System; (ii) use of the Services or System in combination with equipment, software or services not provided, recommended or furnished by Advocat AI, provided that no indemnification claim would have arisen but for such combination; (iii) use of the Services or System that materially violates an Order Form or applicable law, regulation of any governmental authority or self‑regulatory agency or authority; or (iv) use of the Services or System in a manner for which they were neither designed nor contemplated. Upon written notice of a claim that the Services infringe a third party’s copyright, trademark or trade secret right, Advocat AI may, but is not obligated to, (i) modify or replace the Services to make them non‑infringing, (ii) procure any rights from the third party necessary to provide the Services, or, if neither option is reasonably practicable, (iii) terminate the applicable Order Form and require the return of all Software and Materials. Notwithstanding the foregoing, Client may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena, or suit.
9.2 Client Indemnification of Advocat AI. Client shall defend, hold harmless and indemnify Advocat AI (and any party controlling, controlled by or under common control with Advocat AI), and their respective directors, officers and employees (the “Advocat AI Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agency against Advocat AI Indemnified Parties to the extent that it is based on any claim with respect to, or arising out of, Client Data, or Client’s use of the Services or System, or any negligence or misconduct of Client, except to the extent caused by Advocat AI. Client shall pay all costs incurred by and damages finally awarded against Advocat AI.
9.3 Conditions for Indemnification. The party seeking indemnification under this Section 9 (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) of any claim, suit or proceeding for which indemnification may be sought; provided, however, that any failure by the Indemnified Party to provide prompt written notice as required by this Section shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall (unless prohibited by law, regulation or a court proceeding) cooperate with the Indemnifying Party with regard to the defense of any suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment that may be entered, except that it may not settle the matter in a manner that imposes any material duty or restriction on the Indemnified Party without its consent, not to be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena, or suit.
10.1 Assignment. Each Order Form shall be binding upon each party’s successors and permitted assigns. Either party (the “Seller”) may assign its rights hereunder to the purchaser or surviving entity (the “Purchaser”) in any stock, assets, merger or other transaction in which all or substantially all of the business of the Seller (or, in the case of Advocat AI, substantially all of the assets of the portion of its business relating to the Services) is transferred, regardless of the form such transaction may take, provided that the Purchaser assumes in writing all of the obligations of the Seller hereunder and the Seller remains jointly and severally liable for such obligations. Except as expressly authorized in the preceding portion of this Section, neither this Agreement nor any Order Form may be assigned, licensed, sublicensed, sold, mortgaged, pledged, or otherwise disposed of (collectively, a “disposition”) by either party without the prior written consent of the other party hereto, and any attempted disposition shall be null and void.
10.2 Governing Law; Venue. Each Order Form shall be governed by and construed in accordance with the laws of Washington State applicable to contracts to be performed entirely within Washington State. Any action or proceeding to enforce or arising out of an Order Form shall be commenced in the state and federal courts located in King County, Washington State. The parties hereto consent to the exclusive jurisdiction of such courts, agree that venue will be proper in such courts and waive any objections based upon forum non conveniens. The choice of forum set forth in this Section 10.2 will not be deemed to preclude the enforcement of any judgment obtained in such forum or the taking of any action under an Order Form to enforce such judgment in any other jurisdiction.
10.3 Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of their respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, such Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third-party vendors, Internet slow-downs or failures (through denial of service, worms, telecommunications problems, or the like), equipment failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event shall extend the due dates or time schedules for reasonable periods of time as determined by Advocat AI in good faith; provided that if any such delay or excuse shall exceed thirty (30) days, the non-affected party may, at its option, terminate an Order Form upon notice to the affected party.
10.4 Export Control Restrictions. Client warrants that its use of the System, Services and Materials shall comply with all export control laws and agrees to indemnify, defend, and hold harmless Advocat AI from any liability, claim, loss or expense suffered or incurred by Advocat AI as a result of a breach of this warranty.
10.5 Entire Agreement; Modifications. Each Order Form, which includes (i) the exhibits and schedules attached thereto and (ii) this TOS and any policies, schedules, exhibits and attachments referenced herein, constitute the entire agreement of the parties with respect to the subject matter hereof, supersedes any and all existing agreements relating to the subject matter hereof, and may not be modified or amended except by a written instrument signed by both parties. No failure or delay in exercising any right, power or remedy under an Order Form shall operate as a waiver thereof, nor shall any single or partial exercise of any right under an Order Form preclude any other or further exercise thereof or the exercise of any other right.
10.6 Notices. All notices to be given or otherwise made to a party shall be in writing, delivered by hand in person, or by electronic transmission, or by express overnight courier service, or by facsimile transmission (with a confirming copy sent by U.S. Mail, registered or certified, return receipt requested), or by registered or certified mail, postage pre‑paid return receipt requested, addressed to such party at the address set forth on the first page hereto or at such other address as may be hereafter designated in writing by such party. All such notices provided in accordance with this section shall be deemed delivered upon the earlier of actual delivery, or three (3) days after deposit in the mail or with a courier.
10.7 Severability. If any provision of an Order Form shall be held to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of such Order Form and such Order Form shall be reformed, construed and enforced to the fullest extent as if any such illegal, invalid or unenforceable provision were not contained herein.
10.8 Counterparts. Each Order Form may be executed in counterparts, each of which shall be deemed an original, but together shall constitute one and the same instrument.
10.9 Independent Contractors. Each Order Form shall create an independent contractor relationship between Advocat AI and Client. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures, or the like by virtue of the provisions hereof.
10.10 Headings. The headings preceding the various paragraphs and subparagraphs of this TOS and each Order Form are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this TOS and/or Order Form or its terms.
10.11 Survival. The obligations under Sections 5, 6, 7, 8, 9, and 10.2, 10.9 of this TOS and any other provision of this TOS or applicable Order Form that by its nature is intended to survive, shall survive the termination or expiration of such Order Form.
Schedule A –
Advocat AI Service Level Agreement
- SERVICE AVAILABILITY
The Services will be available as follows, exclusive of Scheduled Downtime.
Monthly Target Service Level
99% of the time, 24 hours/day, 365 days/year
The availability of Services for any given month will be calculated as follows: the total number of minutes in the Available Hours for the month minus the total number of minutes of Unavailability divided by the total number of minutes in the Available Hours for the month.
- SCHEDULED DOWNTIME
Scheduled Downtime periods during which Services may be reduced or suspended (with advance notice to Clients) may occur for:
- Major application changes (such as server upgrades); and
- General system maintenance.
- SUPPORT OBLIGATIONS
(a) Releases. Maintenance Releases will be made available to Client at no additional charge to the extent such release is generally made available to Advocat AI clients during the term of this TOS. Major Releases will be made available to Client to the extent and on the terms that Advocat AI makes such Major Releases generally available to its clients during the term of this TOS. Advocat AI, in its sole discretion, will determine whether an Update is a Major Release or Maintenance Release.
(b) Problem and Error Resolution. Advocat AI will investigate Client-reported errors related to the Services. Advocat AI will make commercially reasonable attempts to substantiate the existence of the problem, evaluate the seriousness of the problem’s effect on Client and provide a workaround or resolution within the time frame established in the Error Reporting and Priority Guidelines set forth below.
(c) Client Responsibilities. In order to receive Advocat AI’s support, Client will need:
- High-speed internet connection;
- Modern internet browser; and
- Video conferencing capability.
“Available Hours” in a month means the total number of hours in the month minus any Scheduled Downtime during such month.
“Maintenance Release” means upgrades to the Advocat AI System and/or Services that involve error corrections, patches, bug fixes or minor modifications or minor enhancements generally made available to licensees.
“Major Release” means upgrades to the Advocat AI System and/or Services that involve the addition of new features or significant functional enhancements.
“Standard Support Hours”: 8AM to 8PM, Pacific Standard time, Monday to Friday, exclusive of observed holidays.
“Unavailability” shall occur during any sixty (60) minute period, when the response time for a web page exceeds fifteen (15) seconds on average during such sixty (60) minute period as measured from a server on the local network, but does not but does not include any unavailability that is caused solely by: (a) Scheduled Downtime; (b) acts or omissions of Client or its Users in violation of this Agreement; (c) failures within Client’s internal network or connectivity issues not caused by Advocat AI; or (e) Force Majeure Events.