Schedule D: Pindrop Customer Agreement
This Pindrop Customer Agreement (“PCA”) is between Pindrop Security, Inc. (“Pindrop”) with a principal place of business at 1115 Howell Mill Road, Suite 700, Atlanta, GA 30318, and the customer identified in Section 2 (Company Information) of the Order incorporating this PCA (“Company”) and is effective as of the Order Date. Capitalized terms not otherwise defined have the meanings given in the attached Exhibit A (Glossary) or in the Order.
1. Engagement Model.
(a) PCA and Orders. This PCA applies to Company’s subscription to each Product and any supplemental Services that Pindrop may provide to Company. For Product purchases, the parties will execute an Order. Pindrop will provide Services as described in the Order, which details the scope of Services, fees payable, and other terms relevant to those Services.
(b) Implementation Services. Implementation Services may be performed by Pindrop, its affiliates, or subcontractors provided that Pindrop remains liable for the acts and omissions of its affiliates and subcontractors in breach of the Agreement.
(c) Support Services. Pindrop will provide Support Services for each Product using the Support Tools. Support Services commence on the Readiness Date and continue until expiration of the relevant Subscription Term. Company agrees that Pindrop and its affiliates can collect, analyze, retain and use the usage, statistical data and other log data collected by Support Tools (“Support Data”) to maintain, develop, and improve Pindrop’s or its affiliates’ products and services (the “Product Improvement Purposes”) and have the right to retain and use Support Data for Product Improvement Purposes after termination of this PCA in accordance with Pindrop’s then-current data retention policies. Company represents that it will have all rights necessary to permit the collection and use of Support Data by Pindrop and its affiliates for the purposes contemplated in this PCA.
2. Payment Terms.
(a) Payment; Late Fees. Company will pay Pindrop the fees for the Product and Services in accordance with the relevant Order. If an invoice schedule is not specified in an Order, then fees for Implementation Services are payable upon completion of the Implementation Services. All fees will be invoiced and payable in U.S. Dollars and are due within thirty (30) days after the date of Pindrop’s invoice (the “Due Date”). Company must notify Pindrop of any invoice dispute no later than the relevant Due Date or the invoice is deemed approved by Company. Invoice disputes are handled on a case-by-case basis. The parties will use commercially reasonable efforts to resolve invoice discrepancies as soon as commercially practicable. Pindrop reserves the right to apply late charges at the maximum amount permitted by Law. Company will pay all taxes, tariffs and transportation costs incurred under the Agreement (including sales, use, excise, or value added taxes).
(b) Subscription Management. Company understands that the Product is subject to usage limits. If Company exceeds a contractual usage limit, Company will promptly pay any invoice for excess usage as specified in the relevant Order.
(c) Expense Reimbursement. Company will reimburse Pindrop for all reasonable travel and incidental expenses incurred by Pindrop in connection with performing any Services hereunder, within 30 days after the date of receipt of Pindrop’s invoice for such expenses. Pindrop will furnish documentation of such expenses through written invoices.
3. Confidentiality.
(a) Definition. Each party (“Disclosing Party”) may provide to the other party (“Receiving Party”) information designated as confidential or proprietary, or that should be considered confidential from its nature or from the circumstances surrounding its disclosure (“Confidential Information”) in connection with the Agreement. For clarity, Pindrop Property is Pindrop’s “Confidential Information”, and Company Call Data is Company’s “Confidential Information”. The terms of the Agreement are considered “Confidential Information” of both parties. Confidential Information does not include information that: (i) is or becomes generally known or available to the public at large other than as a result of Receiving Party’s breach of an obligation to the Disclosing Party, (ii) was known to Receiving Party free of any obligation of confidence prior to disclosure by Disclosing Party, (iii) is disclosed to Receiving Party on a non-confidential basis by a third party without obligation of confidence to Disclosing Party, or (iv) is developed by the Receiving Party independently of and without reference to Disclosing party’s Confidential Information.
(b) Restrictions. Receiving Party agrees it will: (a) protect Disclosing Party’s Confidential Information using the same degree of care that Receiving Party uses for its own Confidential Information, but in no event less than reasonable care, (b) use Disclosing Party’s Confidential Information solely in connection with the performance of the Agreement, and (c) not divulge Disclosing Party’s Confidential Information to any third party. Receiving Party agrees to take all reasonable steps to ensure that Disclosing Party’s Confidential Information is not disclosed by a Receiving Party Representative in breach of this Section. Company agrees it will not disclose the results of benchmark tests or any other evaluation of Pindrop Property to any third party without Pindrop’s prior written approval. For purposes of this Section, “third party” does not include Receiving Party or its affiliates, employees, contractors, subcontractors, attorneys, accountants, or other professional advisors (each, a “Representative”), as long as the Representative (1) has a commercially reasonable need to know Disclosing Party’s Confidential Information in connection with the Agreement and (2) is under contractual or fiduciary confidentiality obligations substantially equivalent to the terms of this Section. Receiving Party is responsible for a breach of this Section by a Receiving Party Representative to the same extent as Receiving Party itself.
(c) Limited Exceptions. Notwithstanding anything in this Section to the contrary, Confidential Information may be disclosed in response to a valid court order or as otherwise required by Law, or as necessary to establish the rights of either party under the Agreement, provided that the party making the disclosure must provide written notice to the other party with a reasonable opportunity to obtain a protective order or otherwise protect the Confidential Information.
(d) FOI Act. If the Freedom of Information Act, 5 U.S.C. 552 et seq. or equivalent state law (“FOI Act”) applies to Company, Company acknowledges that Confidential Information may be exempt from disclosure under a FOI Act. Company will promptly notify Pindrop of any requests for disclosure of Confidential Information, and will assert to the requester that the Confidential Information is exempt from disclosure.
4. Ownership and General Use Terms.
(a) Pindrop Property. Company agrees that this PCA is a term services and license agreement only. Pindrop, its affiliates, and their licensors and suppliers retain and own all right, title and interest (including intellectual property rights) in and to all (i) Products, Resold Products, Services, Work Product, Outputs, Support Tools, and any other materials, data or information provided by Pindrop or its affiliates to Company in connection with Products or Services and (ii) any configurations, derivative works, developments, modifications, updates, changes, upgrades, conversions, improvements or the like made to any of the foregoing in subsection (a)(i) above (collectively, “Pindrop Property”). All Feedback is owned by Pindrop and Company hereby assigns to Pindrop all present and future rights, title and interests in and to the Feedback. All rights not expressly granted under the Agreement are reserved by Pindrop, its affiliates, and their licensors and suppliers, and there are no implied rights. For clarity, to the extent Company Call Data (such as a caller’s phone number) is contained in an Output, nothing in this Section restricts Company’s right to use Company Call Data in any manner.
(b) Product Access and Use. Subject to the terms of the Agreement, and as of the Readiness Date, Pindrop hereby grants to Company a limited, non-exclusive, non-transferable (except as expressly provided herein) right (i) during the relevant Subscription Term to access and use the Product in the Authorized Geography, subject to the volume limits described in an Order; and (ii) retain and use the Outputs that are available via the outbound API feed(s) from the Product (“API Output”) solely for Company’s internal business and record keeping purposes during and after the Subscription Term.
(c) Reseller. Pindrop is an authorized reseller of certain products and services of its affiliates (“Resold Products”). The rights and licenses to Resold Products granted to Company by Pindrop under the Agreement are granted by Pindrop as an authorized reseller for the relevant Pindrop affiliate. Solely for purposes of Resold Products, (i) any express rights granted by Company to Pindrop under the Agreement are deemed rights also granted to the relevant Pindrop affiliate and (ii) any express obligations Company has to Pindrop under the Agreement (including, for example, with respect to Feedback) are deemed obligations also extended to the relevant Pindrop affiliate. Company will look solely to Pindrop and Pindrop is solely responsible to Company for any breach of the Agreement by the relevant Pindrop affiliate of any Resold Product-related Orders (including any related Services).
(d) General Use Terms. Products and related Services are provided solely for lawful purposes and use. Company is permitted to use the Product solely to perform Call fraud prevention and phone number verification for Company’s products or services based on the features and functionality enabled in the Product and for no other purpose (e.g., not for credit decisioning purposes). Except as expressly provided otherwise in this PCA, Company is solely responsible for, and agrees to comply with, all Laws with respect to its access and use of Products and Services. Company will use commercially reasonable efforts to prevent unauthorized access to or use of a Product and promptly notify Pindrop if it becomes aware of any unauthorized access or use. Products are subject to export control Laws, including those of the United States government. Company agrees that it will not directly or indirectly export, re-export, divert, release, transfer or disclose Pindrop Property except as expressly approved in writing by Pindrop, and then, only in accordance with all relevant export control Laws.
(e) Restrictions. Company will not: (i) sell, rent, license, sublicense, distribute, lease, encumber, assign, transfer or make available to a third party all or any portion of Pindrop Property in any manner or otherwise copy, use or allow access to Pindrop Property for the benefit of anyone other than Company, (ii) alter, modify or create derivative works of any portion of Pindrop Property, (iii) decompile, reverse engineer or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure or organization of all or any portion of Pindrop Property in any manner (except to the extent expressly prohibited by Law), (iv) use the Product to send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, (v) attempt to gain unauthorized access to the Product or related systems or networks, (vi) access or use Pindrop Property to copy or create a competitive product or service, (vii) disrupt others’ use of network access services used to route Calls, or (viii) directly or indirectly authorize any third parties to do any of the foregoing.
(f) Company Property and License to Pindrop. Company retains and owns all right, title and interest (including intellectual property rights) in and to the Company Call Data, Company Phone Numbers, and Company Call Center Infrastructure. Company hereby grants Pindrop, its affiliates and relevant subcontractors a limited license to collect, use (or give access to), record, host, transmit or share and process the Company Call Data as necessary to provide, maintain, or support the Product for Company. Except for the rights expressly granted in the Agreement, Pindrop acquires no right, title or interest in or to any Company Phone Numbers, Company Call Data or Company Call Center Infrastructure.
(g) Pindrop Database. During the Term, the Product will collect, process, and analyze Fraudulent Call Data. In addition to any other rights granted in the Agreement, Pindrop is authorized to (i) use and contribute Fraudulent Call Data to the Pindrop Database for the purpose of identifying, monitoring, and tracking phone-based fraud or suspicious transactions and to passively authenticate callers for the benefit of Company, Pindrop’s existing or future customers, and the Consortium Members and (ii) use Fraudulent Call Data to develop, improve, or expand product and service offerings for Company or Consortium Members (collectively, (i) and (ii) are the “Authorized Use of Fraudster Data”). When contributing Fraudulent Call Data to the Pindrop Database, the Product will only identify (i.e., “tag”) that the Fraudulent Call Data was provided by Company on a pseudonymized basis (e.g., using a code name within the Pindrop Database itself). For clarity, neither Company nor any other customer of Pindrop has or will have access to or the ability to view the Pindrop Database or its stored data. The Authorized Use of Fraudster Data survives any termination or expiration of the Agreement, provided that Pindrop will cease the Authorized Use of Fraudster Data upon receiving Company’s written request. As between Pindrop and Company, Company is responsible for disclosing to and obtaining consent from its users for the Authorized Use of Fraudster Data as required by Law.
(h) Limited Use Product Terms. Pindrop may make Pre-GA Offerings available to Company from time to time. Pre-GA Offerings are subject to the same terms of the Agreement except as provided otherwise in this Section or an Order. Pre-GA Offerings are provided on an “as is” basis and are excluded from the Support Program Terms and Pindrop’s business continuity program, and may be changed, suspended, or discontinued at any time with prior notice to Company. Except as Pindrop expressly states otherwise in a written notice to Company or in Pre-GA Offering Documentation, (a) Company may access and use Pre-GA Offerings solely through Company’s employees within the Authorized Geography and solely for internal evaluation and/or testing purposes. Certain Pre-GA Offerings may be subject to additional terms as mutually agreed by the parties. Either party may terminate Company’s use of a Pre-GA Offering at any time with written notice to the other party.
5. Representations and Warranties.
(a) By Both Parties. Each party represents that it has validly entered into the Agreement and has the legal power and requisite corporate authority to do so.
(b) Company Responsibilities. Company warrants, acknowledges and agrees that (i) Company will, on behalf of itself and Pindrop and its affiliates as its service providers, provide all required consumer notices and disclosures and, where required, secure consents in compliance with all Laws with respect to the Outputs and Company Call Data and (ii) it maintains privacy policies and agreements with its customers and employees that are compliant with its obligations under this PCA and Laws, and permit the use and sharing of information processed, analyzed or created by a Product (including the creation of Outputs) and/or contributed to the Pindrop Database, as contemplated in the Agreement (collectively, (i) and (ii) are “Company Commitments”). If Company is a financial institution, then Company further warrants that its Customer Commitments are also compliant with its obligations as a Financial Institution under the GLBA. If Pindrop, in its good faith judgement, believes that the Product is being used in a manner that is not compliant with Laws, or that could result in noncompliance with Laws, and/or could subject Company or Pindrop to a claim for liability for noncompliance, Pindrop reserves the right, in its discretion, to modify the Product and any related Services accessed or used by Company, including by way of example only, disabling features or functionality in the Product or related Services or as otherwise deemed reasonably necessary to address the noncompliance. Company agrees to cooperate with Pindrop to the extent reasonably necessary to implement the foregoing modifications. Company is solely responsible for procuring and maintaining, at its sole expense, the Company Phone Numbers and relevant Company Call Center Infrastructure needed to access and use the Product and generate Product Scores, as contemplated in the Documentation. Any act or omission committed by any of Company’s subsidiaries, employees or contractors that, if committed by Company, would be deemed a breach of this PCA is considered a breach by Company.
(c) Pindrop Warranties. Pindrop warrants that (i) each Product will perform without Errors during the relevant Subscription Term and (ii) Pindrop will perform Implementation Services in a professional manner in accordance with industry standards. Pindrop will use commercially reasonable efforts to correct Errors, excluding Errors resulting from an Excused Event as described in the Support Program Terms. Company’s exclusive remedies for Pindrop’s breach of the foregoing warranties are described in Section 11(a) (Termination for Material Breach) of this PCA. Company acknowledges that Products or Services made available to Company on an evaluation only or “early release” basis, as reflected in the relevant Order, are provided “as is” and without warranty, support or indemnification terms. Company acknowledges that timing and cost of Implementation Services may be subject to factors beyond Pindrop’s control (including Company’s fulfillment of its own obligations under an Order in a timely manner) and Pindrop is not responsible for any resulting delays or overruns.
(d) Limited Warranties. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL PINDROP PROPERTY IS PROVIDED TO COMPANY “AS IS,” AND PINDROP, ITS AFFILIATES, AND THEIR LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION, OR DATA ACCURACY. PINDROP, ON BEHALF OF ITSELF, ITS AFFILIATES, AND THEIR LICENSORS AND SUPPLIERS, DISCLAIMS ANY WARRANTY THAT PINDROP PROPERTY WILL MEET COMPANY’S REQUIREMENTS, THAT ITS OPERATION OR USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY AGREES THAT THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THE AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT WITHOUT THEM THE TERMS OF THE AGREEMENT (INCLUDING ECONOMIC TERMS) WOULD BE SUBSTANTIALLY DIFFERENT.
6. Limitation of Liability.
(a) Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF THE PRODUCT) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
(b) Direct Damages. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY PINDROP PROPERTY, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, WILL NOT EXCEED TWO TIMES THE FEES PAID TO PINDROP DURING THE PRECEDING TWELVE (12) MONTHS FOR THE PRODUCT, WORK PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY.
(c) Exclusions.
(i) The limitations of liability in Sections 6(a) (Consequential Damages) and 6(b) (Direct Damages) do not apply to (A) a party’s breach of its confidentiality obligations under the Agreement.
(ii) (B) Pindrop’s obligations under Section 7 (Infringement Claims), (C) Company’s obligations under Section 8 (Company Coverage for Third Party Claims), or (D) a party’s infringement or misappropriation of the other party’s intellectual property rights.
The limitation of liability in Section 6(b) (Direct Damages) does not apply to Company’s breach of Section 5(b) (Company Responsibilities).7. Infringement Claims.
(a) Coverage. Pindrop agrees, at its expense, to (i) defend or settle any third party claims, actions, or demands brought against Company, where the third party alleges that a Product furnished to Company and used within the scope of and in compliance with the Agreement infringes a U.S. copyright or any U.S patent issued as of the Order Date and (ii) pay damages, if any, finally awarded by a court of competent jurisdiction against Company or agreed upon in settlement by Pindrop.
(b) Exclusions. Pindrop is not responsible under this Section 7 (Infringement Claims) for infringement arising out of or related to: (i) Third-Party Software Components, when taken on a stand-alone basis and not in combination with other elements of the relevant Product, (ii) modification of a Product by anyone other than Pindrop, where the Product would not infringe except for that modification, (iii) combination of a Product with other software, hardware, processes, or materials not provided by Pindrop, where the Product would not infringe except for the combination, (iv) use of a Product version other than the most recent release if infringement would have been avoided with the use of the most recent release (but only if Pindrop has provided Company access to the most recent release at no additional charge), or (v) Company Call Data, if the Product would not infringe except for that Company Call Data.
(c) Remedies. If the Product is held or believed by Pindrop to infringe (and no exclusion in Section 7(b) applies), Pindrop may, at its sole option and expense, elect to: (i) modify the Product so that it is non-infringing, (ii) replace the Product with non-infringing products which are functionally equivalent or superior in performance, (iii) obtain a license for Company to continue to use the Product as provided in the Agreement, or (iv) terminate the license for the infringing Product and refund any prepaid but unused license fees paid for the infringing Product under the impacted Order. COMPANY’S RIGHTS UNDER THIS SECTION 7 (INFRINGEMENT CLAIMS) ARE COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
8. Company Coverage for Third Party Claims.
Company agrees, at its expense, to (a) defend or settle any claims, actions or demands brought against Pindrop or its affiliates arising out of (i) an allegation which, if true, would breach Section 5(b) (Company Responsibilities) or (ii) Company’s violation of Laws for which Company is responsible under the Agreement in connection with its use of or access to Products or Services, including the collection, processing, analysis, creation (if relevant), storage, or retention of Company Call Data or Outputs, and (b) pay damages, if any, finally awarded by a court of competent jurisdiction against Pindrop or its affiliates or agreed upon in settlement by Company. PINDROP’S RIGHTS UNDER THIS SECTION 8 ARE PINDROP’S SOLE AND EXCLUSIVE REMEDY FOR THE THIRD PARTY CLAIMS DESCRIBED IN THIS SECTION.
9. Coverage Procedures.
With respect to each party’s (“Responsible Party”) third party claim obligations under the Agreement, the other party will (a) promptly notify Responsible Party in writing that it has received notice of any claim for which it seeks third party claim coverage (but no later than 30 days after it receives notice of the claim), (b) provide Responsible Party sole control of the defense and all related settlement negotiations of the claim (provided that the other party retains the right, at its option, to participate in the claim’s defense at its own expense) and (c) provide Responsible Party reasonable assistance, information and authority necessary to perform its coverage obligations.
10. Term.
The term of this PCA is 4 years, commencing on the Order Date (“Initial Term”). This PCA automatically renews annually thereafter for additional 3 year periods, unless one party provides the other party no less than 60 days written notice prior the expiration of the then-current year (each a “Renewal Term” and together, the Initial Term and Renewal Term are the “Term”). This PCA remains binding in full force and effect and continues to apply to any Orders that have not terminated or expired as of the effective date of termination of this PCA until those Orders terminate or expire according to their own terms. For clarity, a notice of non-renewal of this PCA does not in any way modify, impact the validity of, or terminate any existing Orders.
11. Termination Rights.
(a) Termination for Material Breach. Either Party may terminate this PCA or an Order if the other party materially breaches this PCA or the relevant Order and fails to cure the breach within 30 days of receiving notice of the breach (“Cure Period”); provided that if the breach does not involve payments due to Pindrop, can be cured but not within the Cure Period, and the breaching party has commenced significant efforts to cure the breach within the Cure Period, the foregoing termination right may not be exercised so long as the breaching party continues to diligently pursue the cure.
(b) Termination for Chronic Failures. If Pindrop fails to meet one or more service level commitments for a Product (as detailed in the Support Program Terms) 3 times or more in any continuous 12 month period (the third occurrence is the “Chronic Failure Trigger Event”), then Company has 30 days from the end of the month in which the Chronic Failure Trigger Event occurs to provide written notice to Pindrop that Company will terminate the Order to which the Chronic Failure Trigger Event relates, and upon termination Company is entitled to a refund of prepaid and unused subscription fees under the terminated Order.
(c) Termination Required by Company Regulator. If an industry regulatory agency with supervisory authority over Company under Law requires Company to terminate the Agreement, Company has the right to terminate the Agreement upon 30 days written notice to Pindrop. Company remains responsible for all fees in any terminated Orders that are outstanding or would have become payable in the event the Orders had remained in effect until the expiration of the then-current Subscription Term.
(d) Obligations Upon Termination. Upon the expiration or termination of this PCA, all licenses and rights granted to Company under the Agreement immediately terminate and Company will, at Pindrop’s sole option, return or destroy all relevant Pindrop Property. Further, at Disclosing Party’s request Receiving Party agrees to (i) destroy Disclosing Party Confidential Information in its possession or control and (ii) confirm to Disclosing Party in writing that Receiving Party has complied with any destruction instructions. However, Confidential Information (A) in Receiving Party’s or its Representatives’ archives (including legal archives and business records generated in the delivery and support of the Product and Services) or back-up or other systems, (B) expressly authorized in the Agreement to be retained, or (C) retained to comply with litigation holds or Law, in each case is required to be destroyed only in accordance with the Receiving Party’s and its Representatives’ data retention policies, litigation hold or Law, whichever is the longest of the retention requirements. An Order may specify additional or different obligations upon termination for a given Product. The following terms survive expiration or termination of the Agreement or any Order: this Section 11(d), Exhibit A (Glossary), Sections 2 (Payment Terms), 3 (Confidentiality), 4(a) (Pindrop Property), 4(e) (Restrictions), 4(f) (Company Property and License to Pindrop), 4(g) (Pindrop Database), 5(b) (Company Responsibilities), 5(d) (Limited Warranties), 6 (Limitation of Liability), 7 (Infringement Claims), 8 (Company Coverage for Third Party Claims), 9 (Coverage Procedures), 12 (General), and any other terms that expressly survive termination. For clarity, Section 5(b) (Company Responsibilities) survives with respect to Calls analyzed by a Product during the course of the Agreement and any related Orders. Notwithstanding the foregoing, Company agrees that Pindrop has no obligation to save or otherwise make Company Call Data or Outputs available after the effective termination date of the Agreement.
12. General.
(a) Publicity. Company will be provided with an advance copy of any press release and an opportunity to reject, or make changes to, the press release, provided that Company’s approval will not be unreasonably withheld. The parties agree that Pindrop will have the right to publicize the fact that Company is a user of the Product or Services and to list Company’s name on Pindrop’s standard customer lists.
(b) Insurance. During the Term, at its own expense Pindrop will maintain customary insurance coverage with insurance companies that have an A.M. Best Rating of at least A(VII) or better (or a similar rating by another reputable insurance ratings agency in the relevant jurisdiction). During the Term, Pindrop will provide Company copies of all relevant certificates of insurance upon written request.
(c) Governing Law; Jurisdiction. The Agreement is governed by the laws of the State of Delaware, without regard to its conflict of law provisions. With respect to any legal disputes between Company and Pindrop arising out of or related to the Agreement, Company and Pindrop irrevocably consent to the exclusive personal jurisdiction of the federal courts located in Delaware or, if the federal courts do not have jurisdiction, in the Superior Court of the State of Delaware, and any appellate court from the relevant state or federal court.
(d) Procedural Matters. Notwithstanding any other provision of the Agreement, any violation by either party of the other party’s intellectual property or proprietary rights, or a breach of confidentiality, will cause irreparable damage for which recovery of money damages would be inadequate, and the aggrieved party will therefore be entitled to seek timely injunctive relief to protect that party’s rights without the need to post bond. In the event of any dispute arising out of or related to the Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.
(e) Notices. All notices permitted or required under the Agreement must be delivered in writing as follows, with notice deemed given as indicated (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery, or (iii) by certified or registered mail, return receipt requested, 10 days after deposit in the mail. Notice will be sent to the parties at the addresses listed in the Order or at any other address a party designates to the other party in writing.
(f) Waivers; Severability. Neither party will by mere lapse of time without giving notice or taking other action be deemed to have waived the other party’s breach of any provision of the Agreement. If any provision of the Agreement is held illegal, unenforceable, or in conflict with any Law, the validity of the remaining provisions of the Agreement is not affected.
(g) Force Majeure. Except for the payment of money due or payable, neither party is liable for any failure or delay in performance under the Agreement which may be considered a Force Majeure Event.
(h) Entire Agreement. Neither party may assign the Agreement without other party’s prior written consent, except as part of a merger, acquisition, sale of substantially all assets, or similar transaction, provided that the assignee assumes the Agreement by an instrument in writing. Subject to the foregoing, the Agreement is fully binding on and inures to the benefit of the parties and their successors and assigns. The Agreement may be executed simultaneously in two or more counterparts, each of which is considered an original, but which together constitute a single instrument. The parties agree that signatures required by the Agreement are acceptable by electronic means. The Agreement is the complete agreement of the parties with respect to its subject matter and supersedes any and all prior agreements and understandings. Unless expressly authorized otherwise in this PCA, the Agreement may be amended only in a writing that refers to this PCA and is signed by both parties. The parties are independent contractors and neither party is an employee, agent, partner or legal representative of the other for any purpose.
(i) Limited Right to Modify.If litigation or a change in Law occurs that affects the Agreement or either party’s activities under the Agreement, and a party reasonably believes in good faith that the litigation or change will have a substantial adverse effect on that party’s rights or obligations under the Agreement, then the party may, upon written notice, require the other party to renegotiate or supplement the terms of this Agreement in good faith. The notice must reasonably detail the nature of the proposed modifications.Pindrop may also, at its discretion, modify the Agreement as necessary to account for new Product features or functionality or new Services it plans to make generally commercially available to its customers (“Product / Service Update”). Product / Service Updates are effective no sooner than 60 days after Pindrop notifies Company of the same via email(“Product / Service Notice Period”). If Company does not object to a Product / Service Update within the Product / Service Notice Period, then the changes are deemed accepted. Not withstanding the foregoing, if the Product/Service Update is not material or is beneficial to the Company, the Product/Service Update is effective immediately upon Pindrop’s written notice to Company (without the process described above).
Exhibit A (Glossary)
“Agreement” means the documents listed in Section 3 (Agreement) of the relevant Order.
“Authorized Geography” means the state or country in which Company is authorized to access and use the Product to analyze Calls made by Company’s customers also residing in that state or country. For example, if Company is authorized to access and use the Product in the United States, then the Company Phone Numbers included in the Authorized Geography are those intended for use by the Company’s United States-based customers as part of Company’s United States-based business operations.
“Call” means a phone call made to Company that is processed by the Product.
“Call Processing Data” means data (excluding CPNI) obtained by or from a telecommunications network for a Call that is generally used for call routing purposes. Examples of Call Processing Data include data used to initiate, route, exchange, and complete call traffic that is internal to the network or networks during the call.
“Company Call Data” means data and information uploaded, transmitted, input, or otherwise provided or made available by Company in connection with a Product. The phone number from which a Call originates, signaling and call-related metadata from Company’s telecommunications network (including Telco Network Call Data) and Digital Signal for a Call are examples of Company Call Data. Company Call Data does not include audio (i.e., spoken content).
“Company Call Center Infrastructure” means the telephony solution that Company will use with the Product.
“Company Phone Number” means a phone number currently designated by Company for Product analysis of incoming Calls.
“Confirmed Fraud Call” means a Call that Company designates through a Product user interface as being associated with fraudulent or suspicious activity.
“Consortium Members” means Pindrop customers, government agencies, third party data providers, consumer agencies, credit lenders and other third parties that have themselves provided “fraudulent call data” to Pindrop or its affiliates.
“CPNI” or “Customer Proprietary Network Information” means data obtained by or from a telecommunications network that relates to the quality, technical configuration, type, destination, location, or amount of voice service use of calls placed from a particular phone number or is otherwise the type of call-related data that would customarily appear on a customer’s bill who is purchasing telecommunications and interconnected VoIP services from a carrier partner. Examples of CPNI include the phone number of the calling party or called party, type of service the customer has ordered, and the location of the customer or device.
“Digital Signal” means the digital signal used to transmit audio from a device or telecommunications network.
“Documentation” means documentation, user guides and installation instructions Pindrop makes generally available to its customers from time to time.
“Error” means a failure of the Product to perform in material compliance with the relevant Documentation, if the failure can be reproduced by Pindrop.
“Feedback” means all ideas, suggestions, or similar information that Company provides or otherwise makes available to Pindrop or its affiliates with respect to Products, Work Product, Services, or any other Pindrop product or service.
“Force Majeure Event” means any strikes, shortages, riots, insurrection, fires, flood, storm, other weather conditions, explosion, acts of God, war, government action, inability to obtain delivery of parts, supplies or labor, labor conditions (including strikes, lockouts or other industrial disturbances), pandemic disease, earthquakes, riots or acts of terrorism, or any other cause which is beyond the reasonable control of a party.
“Fraudulent Call Data” means the following data for a Confirmed Fraud Call: (i) phone number, (ii) timestamp, duration, type of number, and geography metadata, (iii) call type (e.g., mobile or VOIP), (iv) Product Scores, and (v) labels automatically assigned to a Call (a) designating the Call as fraud/genuine or authenticated/non-authenticated after it is dispositioned by an automated policy (as configured within the Product) or manually by a user or (b) indicating the Call was answered or not answered during Product analysis, in each case based on Product functionality..
“Implementation Services” means implementation services (including installation, configuration, project management, process reviews and associated policy development, testing, or go-live support) Pindrop provides to Company in connection with a Product, as described in the Order.
“Laws” means all applicable laws, statutes, regulations or other government authority, including without limitation laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, data privacy, data protection, or publicity.
“Order” means any Pindrop order form executed by the parties for the purchase of Products and/or Services, and into which this PCA is incorporated.
“Outputs” mean the data or information portion of the Product that are generated or derived using Pindrop’s proprietary technology and relevant to a Product’s analysis of a Call or Company Call Data (including, for example, Product Scores).
“Pindrop Risk-Based Authentication” or “Pindrop RBA” means Pindrop’s proprietary risk-based modeling and analytics (including carrier risk, device risk, calling patterns, and velocity) generated from analysis of Company Call Data.
“Pindrop Database” means the proprietary Pindrop database that includes (i) Fraudulent Call Data, (ii) data provided by Consortium Members that is similar to Fraudulent Call Data, and (iii) information derived from third party data providers and Pindrop’s or its affiliates’ own research efforts. For clarity, unless expressly agreed otherwise by the parties in an Order, the Pindrop Database does not contain audio from Calls.
“Pre-GA Offering” means (i) a new Product or (ii) a new feature for an existing Product for which Company has a subscription, in each case as provided in a Pindrop-managed lab environment and identified as “Beta,” “Limited Availability,” “Pre-Release” or that Pindrop otherwise identifies as unsupported.
“Product” means a product (in whole or in part) provided to Company under an Order, including updates, functional enhancements, modifications, extensions, Pre-GA Offerings, Error corrections or other bug fixes.
“Product Score” means the scoring metrics, data, or reasons for a scoring metric provided by Pindrop or its third-party licensors’ proprietary processes and analysis of Company Call Data, including but not limited to (i) statistical models intended to predict the likelihood of a phone number being fraudulent, suspicious, or from someone other than an authenticated caller and (ii) scores resulting from Next Caller’s VeriCall technology or the Pindrop RBA service.
“Services” means Support Services or Implementation Services provided by Pindrop to Company.
“Subscription Term” means the duration that Company has the right to use the Product, as described in the relevant Order.
“Support Program Terms” means, unless provided otherwise in an Order, the terms of Pindrop’s standard Product support and maintenance services program (available at [https://www.pindrop.com/support-program-terms]) as updated and supplemented by Pindrop from time to time upon notice to Company.
“Support Services” means Pindrop’s support and maintenance services included in a Product subscription, as detailed in the Support Program Terms.
“Support Tools” means software, web analytics tools or other technology Pindrop uses to (i) monitor, maintain or improve Product performance, integrity or security; (ii) identify Errors and Product maintenance issues; (iii) understand user behavior with the Product (e.g., what feature or functionality is preferred), which may include the recording of a user’s session while logged in to the Product; and (iv) manage subscription-related metrics (e.g., quantity of Calls or expiration of a given Subscription Term).
“Telco Network Call Data” means, collectively, CPNI and Call Processing Data.
“Third-Party Software Components” means third-party software bundled with or included in a Product for which Pindrop has an obligation to pass-through the open source or proprietary commercial software license terms directly to Company from the relevant third-party licensor.
“Work Product” means any inventions, discoveries, software or other works of authorship (including, without limitation, Product configuration), and other proprietary materials or work product developed by or for Pindrop or its affiliates, alone or with others, in the course of Pindrop’s performance of Services, including any and all related and underlying software, databases (including incorporated data models, structures, and non-Company specific data), specifications, technology reports and documentation.