Terms & Conditions
These Terms & Conditions govern any Order Form that incorporates them and are entered into between Rogo Technologies, Inc. (“Rogo”) and the customer identified in the applicable Order Form as of the Effective Date therein. The Order Form, together with these Terms & Conditions, including all exhibits hereto (including any Data Protection Agreement), constitutes the “Agreement.”
The parties agree as follows:
1. Certain Definitions
Capitalized terms not defined in this Agreement have the meanings given them in the Order Form. Capitalized terms not defined in-line below have the meanings given to them in this Section 1.
“Affiliates” means with respect to a party, any person or entity controlling, controlled by, or under common control with such party. For purposes of this definition, the term “control” (and correlative terms) means direct or indirect ownership or control of more than 50% of the voting interests of the party.
“Authorized User” means an individual associated with the Customer who has been granted access by Customer to the Platform in accordance with, and subject to, this Agreement.
“Configurations” means Skills, agents, automated workflows, scheduled tasks, shortcuts and other Platform configurations.
“Customer Content” means, collectively, Customer Data, Inputs, Outputs, and Customer Configurations. For purposes of clarity, Customer Content does not include De-identified Data.
“Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform or stored by Customer on the Platform, including for Processing on Customer’s behalf to perform Professional Services; provided that, for purposes of clarity, Customer Data as defined herein does not include Telemetry Data, Inputs, or Outputs.
“Customer Configuration” means (i) any Configuration that Customer or an Authorized User creates independently and provides to Rogo or the Platform, or (ii) those portions of any Configuration created by Rogo specifically for Customer that contain Customer’s Confidential Information, in each case excluding any Rogo IP.
“De-identified Data” means Customer Content that has been de-identified, anonymized, and/or aggregated in a manner from which neither the substance of any Customer Content nor the identity of any natural person can be reasonably determined, and any statistical or other analytical data derived from the foregoing.
“Inputs” means requests, prompts and other information, including Customer Configurations, provided by Authorized Users to the Platform to request Outputs, whether submitted through the Platform’s web-based interface, via email to Rogo-designated email addresses, or through any other supported access method.
“Outputs” means information generated by the Platform and delivered to the Customer in direct reply to Inputs.
“Platform” has the meaning set forth in the Order Form, and includes the Rogo- (or Rogo vendor-) hosted infrastructure that allows Rogo to respond to Input with Output.
“Professional Services” means training, migration, implementation, integration, or other professional services that are memorialized in writing in an Order Form and provided to Customer in connection with its use of the Platform hereunder.
“Rogo IP” means, collectively, the Platform, the Documentation, and any and all other software, technology, interfaces, algorithms, modules, data or content provided to Customer or any Authorized User or otherwise developed by Rogo or its licensors in connection with the foregoing, as well as any intellectual property rights associated with the foregoing. For purposes of clarity, Rogo IP includes Rogo Configurations, Telemetry Data, De-identified Data and any information, data, or other content derived from Rogo’s provision of the Platform but does not include Customer Content.
“Rogo Configuration” means any Configuration or portions thereof created by Rogo that (i) is available as part of the Platform as standard or default functionality, (ii) was made prior to or independent of this Agreement, or (iii) does not contain Customer's Confidential Information and is not specific to Customer, including any updates or improvements thereto made by Rogo.
“Skills” means sets of instructions, prompts, and associated scripts, data files, or other supporting resources, designed to direct the Platform in processing Input and generating Output for specific tasks or workflows on a recurring basis.
“Telemetry Data” means usage data collected and processed by Rogo in connection with Customer’s use, support, and/or operation of the Platform, including without limitation data reflecting the access, interaction, or use of the Platform by or on behalf of Customer (such as frequency, duration, volume, features and functions utilized, navigation patterns, aggregated or anonymized descriptions of the type of task performed, visit, session, click-through, and click-stream data), data used to identify the source and destination of a communication, activity logs, data used to track, optimize and maintain performance of the Platform (e.g.,response times and uptimes), data used to investigate and prevent system abuse, and any statistical or other analysis, information, or data based on, or derived from, the foregoing. For the avoidance of doubt, Telemetry Data does not include Customer Content.
2. Access and Use
Platform Usage. Subject to the terms and conditions of this Agreement, during the Subscription Period identified in the Order Form, Customer and its Authorized Users may, on a non-exclusive, non-sublicensable, and non-transferable (except in accordance with Section 15(h) (Assignment)) basis: (a) access and use the Platform; and (b) use Rogo’s standard end user documentation that it makes generally available to its customers from time to time (the “Documentation”) in support of its use of the Platform, in each case solely for Customer’s internal business purposes consistent with the Documentation and this Agreement. Customer is solely responsible for all the acts and omissions of its Authorized Users in connection with their use of the Platform and this Agreement. Each Authorized User must have its own unique account on the Platform, and Authorized Users may not share their account credentials with one another or any third party.
Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the accessgranted in this Agreement or in a manner inconsistent with applicable law. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Rogo IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove, alter, or obscure any proprietary notices
from any Rogo IP; (v) use any Rogo IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any Rogo IP for purposes of competitive analysis or benchmarking of Rogo or the Platform, the development, provision, or use of a competing software service or product, or any other
purpose that is to Rogo’s detriment or commercial disadvantage; (vii) bypass or breach (or attempt to bypass or breach) any security device or protection used by the Platform or access or use the Platform other than by an Authorized User through the use of valid access credentials; (viii) circumvent any restrictions placed by Rogo on the use of the Platform; (ix) input, upload, transmit, or otherwise provide to or through the Platform
any information or materials that are unlawful or injurious, or that contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (A) computer, software, firmware, hardware,
system, or network; or (B) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby (“Harmful Code”); (x) use the Platform in any manner that fulfills the conditions of a high-risk AI system as defined under Article 6 of the EU Artificial Intelligence Act (Regulation (EU) 2024/1689) (the “EU AI Act”), as further specified in Annexes I and III thereto; or (xi) with
3 respect to any data or content received through Third-Party Data Feeds (“Data Provider Content”): (A) use such Data Provider Content for any purpose other than Customer’s internal business purposes as permitted under this Agreement; (B) sell, assign, transfer, distribute, or otherwise make available such Data Provider Content to any third party; (C) create derivative works of any Data Provider Content; or (D) use any Data Provider Content in connection with any third-party tool, platform, or service other than through the Platform.
Supplemental Terms. From time to time, Rogo may release new products, features, or functionalities, or integrate new Integrated Products or Third-Party Data Feeds (each as defined below), that may be provided pursuant to supplemental terms that, in addition to this Agreement, govern use thereof
Reservation of Rights. Rogo reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or
other right, title, or interest in or to the Rogo IP. Rogo reserves the right to change, replace or remove certain sources of Platform data, provided that the Platform retains substantially similar or enhanced capabilities
Suspension and Other Rights. Notwithstanding anything to the contrary in this Agreement, Rogo may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Rogo reasonably determines that (A) there is a threat or attack on any of the Rogo IP; (B) Customer’s or any Authorized User’s use of the Rogo IP disrupts or poses a security risk to the Rogo IP or to any other customer or vendor of Rogo; (C) Customer, or any Authorized User, is using the Rogo IP for fraudulent or illegal activities or in violation of this Agreement; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or
become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Rogo’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; or (F) any Customer Data or Inputs submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform may infringe or otherwise violate any third party’s intellectual property or other rights; (ii) any vendor of Rogo has suspended or terminated Rogo’s access to or use of any products or services required to enable Customer to access or use the Platform; or (iii) in accordance with Section 6(a) (any such suspension described in subclauses (i), (ii), or (iii), a “ Service Suspension”). Rogo shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Service Suspension. Rogo shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. In the event of a Service Suspension pursuant to Section 2(e)(ii), Rogo reserves the right to modify the Platform while still retaining substantially similar capabilities. Rogo will have no liability for any damage, liabilities, losses (including any loss of data or
profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. In the event that Rogo determines that Customer’s or an Authorized User’s use of the Platform is significantly excessive in relation to other customers and users, Rogo reserves the right to use technical measures to prevent, stop, or limit such excessive use, including by limiting or throttling access to the Platform
and downgrading the functionality and features of the Platform.
Integrated Products. From time to time, Customer may request, or Rogo may otherwise allow, integrations between the Platform and third-party platforms or products (whether via API or other supported method, including, as may be applicable, agents or email) (each, an “Integrated Product”). Customer is responsible for obtaining all proper rights and licenses to use such Integrated Products. Rogo is not responsible for the
operation of any Integrated Products and makes no representations or warranties of any kind with respect thereto or their respective providers, including as relates to the availability of any Integrated Product.
Third-Party Data Feeds. The Platform may allow Customer to receive data feeds from third-party data providers (“Third-Party Data Feeds”). Customer acknowledges that the applicable data provider may require Rogo to verify that Customer is entitled to receive such data or provide information to such data provider as necessary to perform its obligations under the Agreement. To the extent Customer has an existing agreement
with a third-party data provider of a Third-Party Data Feed, Customer is responsible for complying with the terms of such agreement. If any supplemental terms are applicable to the use of any Third-Party Data Feed, Rogo will indicate as such in the Platform or in an Order Form, and Customer must agree to be bound by such terms, or enter into such separate agreement, prior to receiving such data. Customer acknowledges and agrees that all data received through Third-Party Data Feeds remains the property of the applicable third-party data provider, and nothing in this Agreement shall be construed as transferring any ownership rights in such data to Customer
Pilot Period. Rogo may, at its sole discretion, provide Customer with access and use of the Platform on a trial or evaluation basis for a limited period of time set forth on the Order Form (the “ Pilot Period”), consistent with the Documentation. Unless an Order Form states otherwise, or a new Order Form is executed, following the Pilot Period, Customer’s access to and use of the Platform will terminate.
3. Customer Responsibilities
Customer is responsible and liable for all uses of the Platform resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
Customer Content. Only Authorized Users may provide Inputs to the Platform and receive Output from the Platform in response to such Inputs. Customer is solely responsible for all Inputs and Customer Data and represents and warrants that it has all rights, licenses, and permissions required to provide such Inputs and Customer Data for use in connection with the Platform. Customer is solely responsible for all use of the Output and evaluating the Output for accuracy and appropriateness for Customer’s use case, including by utilizing human review as appropriate.
Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data and Inputs, including content and use thereof; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third- party platforms or service providers (“Customer Systems”); (iv) the security and use of Customer’s and its Authorized Users’ access credentials; and (v) all access to and use of the Platform directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all Output and results obtained from, and all conclusions, decisions, and actions based on, such access or use.
Compliance with Laws. Customer acknowledges and agrees that (i) Customer shall remain solely responsible for Customer’s compliance with all laws, rules and regulations applicable to it, including without limitation the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the Investment Advisers Act of 1940, as amended, the Investment Company Act of 1940, as amended, and the rules and regulations promulgated under each of the foregoing by the U.S. Securities and Exchange Commission, and all applicable state or foreign laws, rules and regulations; and (ii) nothing in this Agreement shall constitute any acceptance by Rogo of any responsibility for Customer’s compliance with all applicable laws, rules and regulations.
4. Support
During the Subscription Period, Rogo will make the Platform available and provide support to Customer in accordance with the [Service Level Agreement]. Customer agrees that Rogo may monitor and access Customer Content and use Customer Content in connection with its provision of the support services, including helping with implementation, providing tailored configurations and recommendations, troubleshooting, and delivering support.
5. Confidentiality
Rogo will perform Professional Services if and as described in an Order Form. Customer will provide Rogo all reasonable cooperation required for Rogo to perform the Professional Services, including without limitation timely access to any reasonably required Customer materials, information, or personnel. Subject to any limitations identified in an Order Form, Customer will reimburse Rogo’s reasonable travel and lodging expenses incurred in providing Professional Services. Fees for Professional Services will be invoiced monthly in arrears.
6. Fees and Taxes
Fees. Customer shall pay Rogo the fees identified in the Order Form (the “Fees”) without offset or deduction at the cadence identified in the Order Form. All Fees must be paid within thirty (30) calendar days of the invoice date. Any disputes concerning payment must be submitted prior to the due date. If Customer fails to make any payment when due, and Customer has not notified Rogo in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Rogo’s other rights and remedies: (i) Rogo may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Rogo for all reasonable costs incurred by Rogo in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Rogo may suspend Customer’s and its Authorized Users’ access to all or any part of the Platform until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rogo’s income.
7. Data
Privacy and Security. To the extent Customer Content contains any Personal Data (as defined in the DPA), and Rogo is Customer’s Processor (as defined in the DPA) of such Personal Data, the parties agree that such Personal Data shall be Processed (as defined in the DPA) in accordance with, and that the parties shall comply with their respective obligations under, the [Data Protection Agreement] (“DPA”). To the extent that
Customer is subject to any laws, rules or regulations relating to the protection of its information or data or any information or data of its customers or clients, including but not limited to the Gramm-Leach-Bliley Act and Regulation S-P, Customer understands and agrees that Customer is solely responsible for its compliance with such laws, rules and regulations in connection with Customer’s use of the Platform, including but not limited to the transmission of any Customer Data or Inputs in connection with the access granted to Customer and its Authorized Users, whether transmitted by an Authorized User or not.
Rogo’s Business Purposes. Customer acknowledges that Rogo may monitor, collect, use, and disclose Telemetry Data for its own business purposes, and with regard to Personal Data within Telemetry Data, solely as specified in this Agreement: (i) for accounting, tax, billing, audit, and compliance purposes; (ii) to monitor, detect, investigate, and prevent security incidents, fraud, spam, wrongful, unlawful, or other misuse of the Services; (iii) to combine such data with other data; (iv) to manage the relationship with Customer; (v) for identity verification purposes; and/or (vi) to comply with, or as otherwise permitted or required by, applicable laws, rules, or regulations.
Rogo’s Business Purposes. Customer acknowledges that Rogo may monitor, collect, use, and disclose Telemetry Data for its own business purposes, and with regard to Personal Data within Telemetry Data, solely as specified in this Agreement: (i) for accounting, tax, billing, audit, and compliance purposes; (ii) to monitor, detect, investigate, and prevent security incidents, fraud, spam, wrongful, unlawful, or other misuse of the Services; (iii) to combine such data with other data; (iv) to manage the relationship with Customer; (v) for identity verification purposes; and/or (vi) to comply with, or as otherwise permitted or required by, applicable laws, rules, or regulations.
Customer also agrees that Rogo may use Customer Content to create De-identified Data and that Rogo may use such De-identified Data and Telemetry Data for any business purposes during or after the term of this Agreement, including to: (a) develop, provide, maintain, improve, and support the Platform and Rogo ’s products and services; (b) ensure security and prevent fraud and abuse; (c) perform internal analytics, performance monitoring, and service improvement; and (d) comply with applicable laws. Rogo will not re-identify de-identified Personal Data.
In respect of any processing in accordance with Section 7(b), Rogo shall: (i) independently determine the purposes and means of such processing; (ii) comply with applicable laws (if and as applicable in the context); (iii) process such data as described in Rogo’s relevant privacy notices/policies, as updated from time to time; and (iv) apply technical and organizational safeguards designed to protect such data. To the extent required by applicable law with regard to Personal Data, Customer has the right, upon reasonable notice, to (i) confirm Rogo uses Telemetry Data in a manner consistent with applicable obligations under such laws, and (ii) to take reasonable and appropriate steps to stop and remediate unauthorized use of Telemetry Data under such laws. To the extent required by applicable laws, Rogo shall notify Customer if it makes a determination that it can no longer meet its obligations under applicable laws with respect to its processing of Personal Data.
8. Limitation of liability
From time to time during the Subscription Period, either party may disclose or make available to the other party information about its business affairs, products, technology, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, that is marked, designated or otherwise identified as
“confidential” (collectively, “Confidential Information”). Confidential Information does not include information that is: (a) or becomes part of the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the
Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent legally permissible, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall either, at its option, promptly
(a) return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or (b) to the extent technically feasible, destroy all such copies and certify in writing to the disclosing
party upon request that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the
receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as
such Confidential Information remains subject to trade secret protection under applicable law. Personal Data (as defined in the DPA) will be treated in accordance with the DPA and will not be deemed Confidential Information. For clarity, Rogo IP is deemed
Rogo’s Confidential Information, and Customer Data is deemed Customer’s Confidential Information.
9. Insurance Coverage
Coverage. Rogo will obtain and hold for the duration of this Agreement, at Rogo’s sole expense, insurance coverage as follows below
Commercial general liability insurance with policy limits equal to $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate
Umbrella liability insurance with policy limits equal to $10,000,000.00 per occurrence and in the aggregate
Cyber liability insurance with policy limits equal to $5,000,000.00 per occurrence and in the aggregate.
Professional Errors and Omissions liability insurance with policy limits equal to $5,000,000.00 per occurrence and in the aggregate
Commercial Crime insurance with policy limits equal to $5,000,000.00 per occurrence and in the aggregate.
Workers compensation insurance with policy limits equal to $1,000,000.00 per occurrence and in aggregate.
Certificates. Within ten (10) business days of Customer’s written request, Rogo will furnish Customer with certificates evidencing the insurance policies specified required herein.
10. Intellectual Property
Rogo IP. Customer acknowledges that, as between Customer and Rogo, Rogo owns all right, title, and interest, including all intellectual property rights, in and to the Rogo IP (and, to the extent necessary to effect the foregoing, Customer hereby assigns to Rogo any and all of its rights, title, and interest therein and thereto). Rogo reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and
licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Rogo IP. For the avoidance of doubt, Customer acquires no right, title, or interest in any pre-existing intellectual property of Rogo
Customer Configurations. As between Customer and Rogo, Customer owns all rights, title and interest, including all intellectual property rights, in and to the Customer Configurations (and, to the extent necessary to effect the foregoing, Rogo hereby assigns to Customer any and all of its rights, title, and interest therein and thereto). If any Customer Configuration incorporates or is based upon a Rogo Configuration, Rogo hereby grants to Customer a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license to use, reproduce, modify, and create derivative works of such Rogo Configuration solely as embedded in, or necessary for Customer’s use of, the applicable Customer Configurations. Rogo otherwise reserves all rights to the Rogo Configurations
Customer Content. As between Customer and Rogo, Customer owns and will continue to own all rights, title and interest, including all intellectual property rights, in and to the Customer Content. Customer hereby grants to Rogo a non-exclusive, worldwide, royalty-free, fully paid-up license to use the Customer Content as reasonably necessary for Rogo to perform its obligations and exercise its rights under this Agreement.
Similar Outputs or Configurations. Due to the nature of Rogo’s products and services, Outputs and Customer Configurations may not be unique and other customers may receive similar Outputs or Customer Configurations (notwithstanding that any such similar Outputs or Customer Configurations do not contain Customer Data or Customer’s Confidential Information, Inputs or instructions). Therefore, for clarity, Customer’s ownership of Outputs and Customer Configurations does not extend to similar outputs or Configurations, as applicable, provided to other customers nor to any content that is part of any Third-Party Data Feeds.
Telemetry Data. As part of ordinary course SaaS practices, Rogo monitors Customer’s use of the Platform to ensure the functionality is working and is responsive to Customer’s needs. As part of that process, Rogo collects and compiles Telemetry Data.
Feedback. If Customer or any of its employees or contractors submits, orally or in writing, suggestions or recommended changes to the Platform, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Rogo is free to use and incorporate such Feedback to improve the Platform and Rogo’s other products and services without
restriction or consideration
11. Disclaimers
General. ALL ROGO IP IS PROVIDED “AS IS” AND ROGO, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ROGO, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ROGO, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, INCLUDING OUTPUT, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, WILL BE ACCURATE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, PLATFORM, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ROGO IS NOT LIABLE, AND CUSTOMER AGREES IT WILL NOT SEEK TO HOLD ROGO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THE PROVIDERS OF ANY THIRD-PARTY PRODUCT OR SERVICE, INCLUDING ANY THIRD-PARTY DATA FEED.
AI Tools. The Platform may incorporate artificial intelligence or other machine learning services or applications, including third-party AI models, to provide or supplement certain Platform functionality (“ AI Tools”). CUSTOMER ACKNOWLEDGES THAT THE PROBABILISTIC NATURE OF AI TOOLS MEANS THE PLATFORM MAY PROVIDE INACCURATE OUTPUT OR OTHERWISE NOT ALWAYS PRODUCE INTENDED RESULTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE PLATFORM AND OUTPUTS COMPLY WITH ALL APPLICABLE LAWS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF ANY OUTPUTS. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.
12. Limitations of Liability
EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 8 OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (TO THE EXTENT PAID TO THE THIRD-PARTY PLAINTIFF) (“SUPERCAP LIABILITIES”) AND EXCEPT FOR A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE TO THE OTHER PARTY, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT; THE DELAY OR INABILITY TO USE THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN
THE PLATFORM, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ OR LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF (i) THE AMOUNTS PAID AND/OR PAYABLE TO ROGO HEREUNDER IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (ii) ONE HUNDRED U.S. DOLLARS ($100) (THE “GENERAL LIABILITY CAP”); PROVIDED THAT, FOR SUPERCAP LIABILITIES, EACH PARTY’S AGGREGATE LIABILITY SHALL NOT EXCEED THREE (3) TIMES THE GENERAL LIABILITY CAP
13. Indemnification
Indemnification by Customer. Customer will defend Rogo, its officers, directors, employees, contractors and licensors (collectively, “Rogo Indemnitees”), from and against any action or suit brought against any Rogo Indemnitees by a third party in connection with Customer’s use of or access to the Platform (other than any
claim for which Rogo is responsible under Section 13(b) (Indemnification by Rogo)), including but not limited to a claim that the Customer Content or Customer’s use of the Platform infringes or misappropriates any intellectual property rights of a third party, and will indemnify and hold the Rogo Indemnitees harmless against any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Rogo. Customer’s obligations under this Section 13(a) are contingent upon: (a) Rogo Indemnitees providing Customer with prompt written notice of such claim (except to the extent that Customer is not materially prejudiced by Rogo’s delay); (b) Rogo Indemnitees providing Customer with reasonable cooperation, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim, provided no settlement shall require payment or a confession by any Rogo Indemnitees.
Indemnification by Rogo. Rogo will defend, indemnify and hold harmless Customer, its officers, directors, employees, contractors and licensors (collectively, “Customer Indemnitees”), from and against any action or suit brought against a Customer Indemnitee by a third party based upon a third-party claim that the Platform,
as delivered and when used strictly in accordance with this Agreement, infringes any intellectual property rights of a third party, and will pay costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. The foregoing obligations of Rogo do not apply with respect to the Platform or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Rogo (including without limitation any Inputs or other Customer Content), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Rogo, (iv) combined with other products, processes or materials not provided by Rogo, including Integrated Products (where the alleged claim or claims arise from or relate to
such combination), or (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. Rogo’s obligations under this Section 13(b) are contingent upon: (a) Customer Indemnitees providing Rogo with prompt written notice of such claim (except to the extent that Rogo is not materially prejudiced by Customer’s delay); (b)
Customer Indemnitees providing Rogo with cooperation, at Rogo’s expense, in the defense and settlement of such claim; and (c) Rogo having sole authority to defend or settle such claim, provided no settlement shall require payment or a confession by any Customer Indemnitees. If Rogo believes Customer’s use of the Platform under the terms of this Agreement may be enjoined, then Rogo may, at its sole option and expense
(i) procure for Customer a license to continue using the Platform in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing aspects of the Platform to avoid the infringement while maintaining substantially similar functionality; or (iii) terminate the licenses and access to the Platform, and refund any prepaid Subscription Fees relating to the post-termination period. THIS SECTION 13(b) SETS
FORTH CUSTOMER’S SOLE REMEDIES AND ROGO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT ANY ROGO IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. Subscription Period and Termination
Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the Order Form (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “ Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”).
Termination. In addition to any other express termination right set forth in this Agreement:
Rogo may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Rogo ’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2(b) or Section 8
either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching party provides the breaching party with written notice of such breach; or
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Platform and Documentation. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
Survival. This Section 14(d) and Sections 1, 2(b), 2(d), 6, 7(b), 7(c), 8, 10, 11, 12, 13, 14(c), and 15 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement
15. Miscellaneous
EU AI Act. The parties acknowledge that the Platform is a limited risk AI system subject to transparency obligations under Article 50 of the EU AI Act. Rogo shall take the necessary steps to fulfil its applicable obligations under the EU AI Act, including, where applicable: (i) ensuring that individuals interacting with AI- enabled features of the Platform are informed that they are interacting with an AI system; and (ii) ensuring
that AI-generated outputs are identified as such. Customer shall not interfere with, disable, or circumvent any transparency disclosures or mechanisms implemented by Rogo for the purposes of EU AI Act compliance. Where Customer deploys or makes available the Platform to its own end users or clients, Customer shall be responsible for making any additional disclosures to such persons as may be required under the EU AI Act or other applicable law in connection with such deployment.
Affiliate Use. Customer may grant its Affiliates access to and use of the Platform under Customer’s account consistent with the terms (including payment obligations) herein, provided that Customer will be responsible for its Affiliates’ compliance with this Agreement.
Entire Agreement. This Agreement, together with any Order Forms, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. There are no third-party beneficiaries to this Agreement.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, email, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Notices to Rogo shall be sent to the address set forth below, and Notices to Customer shall be sent to the contact person specified in the applicable Order Form. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party, (ii) if the party giving the Notice has complied with the requirements of this Section, and (iii) in the case of email, no error
message or failure-to-deliver notification is received
If to Rogo:
Rogo Technologies, Inc.
360 Park Avenue South, Floor 7
New York, NY 10010
Attention: Legal
With a copy to email: legal@rogo.ai
Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and Modification; Waiver. Only a written amendment signed by both parties can modify an Order Form; however, given that these Terms & Conditions apply across Rogo’s customers, these Terms & Conditions may be amended by Rogo upon written notice to Customer, provided that any such amendment will not be effective until the commencement of the next Renewal Subscription Period. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts located in the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Rogo. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 2(b), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Export Controls. Customer understands that the Platform is subject to various trade and economic sanctions and export control laws and regulations (“Trade Controls”), and agrees to conduct its activities pursuant to this Agreement in compliance therewith. Customer is not: (1) designated on an applicable government list of prohibited or restricted persons, or majority-owned or controlled by such a listed party (a “Restricted Party”); (2) organized, located, or ordinarily resident in a restricted country or territory (presently, Cuba, Iran, North Korea, or the Crimea, Donetsk, or Luhansk regions of Ukraine (each a “Sanctioned Country”)); or (3) otherwise the target of Trade Controls prohibitions or restrictions. Customer shall not, without regulatory authorization as may be required, export, reexport, or transfer the Platform to, provide related services to, or otherwise use the Platform for the benefit of, Restricted Parties or Sanctioned Countries, or for any prohibited end-use (including, without limitation, activities relating to nuclear, chemical, and biological weapons, military, and ballistic missiles), or otherwise in violation of Trade Controls. Customer promptly will notify Rogo if any of the foregoing representations ceases to be true. Rogo has the right to terminate this Agreement effective immediately in the event of any of the following: (1) Customer becomes a Restricted Party; (2) Customer violates the terms of this clause; or (3) Rogo reasonably determines that its compliance obligations with respect to Trade Controls necessitate termination (each a “Trade Controls Event”). Termination for these reasons shall be deemed a termination for just cause, relieving Rogo of any obligation under this Agreement. Customer shall hold Rogo harmless against all liabilities, and, to the extent permitted by applicable Trade Controls, indemnify Rogo for all costs, expenses, damages, and losses incurred by Rogo arising from a Trade Controls Event.
Publicity. Rogo may identify Customer as a user of the Platform and may use Customer’s name, logo, and other trademarks in Rogo’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither party may use the name, logo, or other trademarks of the other party for any purpose without the other party’s prior written approval.