TERMS OF USE
This Services Agreement (“Agreement”) supplements the Slack message between Odetta, Inc. (“Odetta”) and you (“Client”). By clicking the “Pay” or a similar indication, you (i) accept this Agreement; (ii) agree to be bound by these terms and conditions; and (iii) have entered into a binding agreement between you and Odetta.
Scope of Services
Odetta agrees to provide the services (“Services”) described on the Slack message as may from time to time be approved. Each Slack message shall define a specific Service authorized by Client, the Service schedule or term, the applicable pricing, and other appropriate terms and conditions. The Services shall be governed by the terms and conditions of this Agreement; however, in the event of any conflict between this Agreement and a Slack message, the provisions of this Agreement shall prevail.
Odetta shall have the right to use third parties (“Third Party Consultants”) in performance of its obligations and Services hereunder and, for purposes of this Agreement, all references to Odetta or its employees shall be deemed to include such Third-Party Consultants.
Price and Payment
The Services provided by Odetta shall be at the then-current pricing identified on the Odetta Slack channel. Pricing may be updated by Odetta at any time and the updated prices will be applicable to Services provided after the pricing update.
Odetta will submit invoices for charges and expenses hereunder weekly. Client shall make payment via credit card on or before the 5th of the month following the provision of Services.
The charges required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Client shall pay or reimburse Odetta for all sales, use, VAT, excise, property, or other taxes or levies which Odetta is required to collect or remit to applicable tax authorities. This provision does not apply to Odetta's income or franchise taxes, or any taxes for which Client is exempt, provided Client has furnished Odetta with a valid tax exemption certificate.
Confidential Information
Each party agrees at all times to keep strictly confidential all Confidential Information (as hereafter defined) belonging to the other party. “Confidential Information” shall mean any information, technical data or know-how including, but not limited to, that which comprises or relates to the other party’s confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, customer names and other information related to customers, price lists, pricing policies and financial information or other business and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine-readable form and any analyses, compilations, studies or documents related thereto.
Each party shall at all times protect and safeguard the Confidential Information of the other and agrees not to, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce, or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction, or distribution of the Confidential Information. The parties agree, however, that Odetta may disclose Confidential Information on a confidential basis to a Third-Party Consultant in connection with any work that the Third-Party Consultant is performing on behalf of Odetta.
Each party acknowledges that the other party shall have the right to take all reasonable steps to protect its Confidential Information, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity in the event the other party does not fulfill its obligations under this Section.
Each party agrees to restrict access to the other party’s Confidential Information only to those employees and/or Third-Party Consultants who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is, or at any time becomes, a part of the public domain through no act or omission of the receiving party; (ii) is independently discovered or developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party; or (v) is disclosed in response to an order of a court or authorized agency of government, provided that notice is promptly given to the party whose Confidential Information is to be so disclosed so that such party may seek a protective order and/or engage in other efforts to minimize the required disclosure and the parties shall cooperate in seeking the protective order and engaging in such other efforts.
Nothing in this Agreement shall preclude Odetta from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Odetta in the performance of Services hereunder
Ownership
All data and Confidential Information provided by the Client shall remain Client property.
Notwithstanding anything contained herein, all general know-how, systems, software (including any modifications, enhancements, and updates), documentation, tools, utilities, methodologies, specifications, techniques, and other materials resulting from Odetta’s performance of the Services (together with the intellectual property rights therein but excluding any Client Confidential Information) shall vest in Odetta.
Odetta shall have no maintenance or support obligations with respect to any Services.
Warranties
Odetta warrants that it has the right to enter into this Agreement and that all Services performed under this Agreement shall be performed in a workmanlike and professional manner.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, ODETTA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Limitation of Liability. IN NO EVENT SHALL ODETTA BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF CHARGES PAID BY CLIENT FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL ODETTA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOOD WILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Termination
This Agreement or any Services hereunder may be terminated prior to expiration or completion in accordance with the following:
By either party without cause on written notice which may include via the applicable Slack channel.
By either party in the event the other (i) has failed to perform any obligation required to be performed under this Agreement and such failure is not corrected within ten (10) days from receipt of written notice advising of such failure from the other party; or (ii) files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
General Terms and Conditions
Independent Contractor. Odetta is an independent contractor and nothing in this Agreement shall be deemed to make Odetta an agent, employee, partner, or joint venturer of Client. Neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
Expenses and Attorneys’ Fees. In the event any action, including arbitration, is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney's fees.
Assignment. Client may not assign or transfer its rights under this Agreement whether by operation of law, change of control, or in any other manner, without the prior written consent of Odetta. Any attempt to assign or transfer this Agreement by Client shall be void.
Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Odetta shall be sent to the attention of the President with a copy to the General Counsel.
Force Majeure. Odetta shall not be liable to Client for any delay or failure of Odetta to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Odetta. Such causes shall include, but are not limited to, acts of God, war, terrorist act, invasion, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, bank closures/failures, natural catastrophes, floods, fires, loss of electricity or other utilities, generalized lack of availability of raw materials or energy, governmental acts or omissions, changes in laws or regulations, labor strikes, or delays by Client in providing required resources or support or performing any other requirements hereunder.
Reservation of Rights. Odetta reserves all rights not specifically granted herein.
Entire Agreement. This Agreement and the applicable Slack message constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals, prior discussions, and writings between the parties with respect thereto. The terms and conditions of any purchase order or other instrument issued by Client in connection with this Agreement shall not be binding on Odetta.
Modifications. The parties agree that this Agreement cannot be altered, amended, or modified, except in writing which is signed by an authorized representative of both parties.
Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Client agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Third-Party Consultant of Odetta without the prior written consent of Odetta. Client further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Third-Party Consultant of Odetta for a period of one (1) year from such former employee's or Third-Party Consultant’s last date of service with Odetta. Violation of this provision shall entitle Odetta to assert liquidated damages against Client equal to two hundred percent (200%) of the solicited person's gross annual compensation.
Headings. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.
No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Survival. The provisions set forth in Sections 2, 3, 4, 5.2, 6, and 8 of this Agreement shall survive termination or expiration of this Agreement.
Choice of Law. This Agreement shall be governed and interpreted by the laws of the state of New York without regard to the conflicts of law provisions thereof. Any action or suit related to this agreement shall be brought in the state or federal courts located in New York, New York and each party hereby consents to the exclusive jurisdiction of such courts.