Terms of Service

 These Terms of Service (these “Terms” or this “Agreement”) provide the terms and conditions under which Pear.ai, Inc., a Delaware corporation, (“Pear.ai”) provides you (“Customer” and together with Pear.ai, the “Parties” or individually, a “Party”) with access to and use of Pear.ai products and services (the “Service”) identified in a service order or purchase order agreed to by Pear.ai with Customer or an Affiliate (the “Service Order”).  As used in these Terms, “Affiliate” means and includes any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of, or the power to vote, at least fifty percent (50%) of the voting stock, shares or interests of such entity.

Please read the Terms carefully before using the Service, as your use of the Service will signify your assent to be bound by these Terms, which include limitations of Pear.ai’s liability.  IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE SERVICE.

1. Access to Service; Restrictions

1.1 Access to Service.  Subject to these Terms, including but not limited to Customer’s payment of all fees set forth in the Service Order (“Fees”), Pear.ai agrees to provide Customer with remote access to and use of the Service and other Pear.ai software, content applications or other technology (“Pear.ai Technology”) for Customer’s business purpose and subject to other use restrictions set forth in the Service Order (“Permitted Use”) during the term set forth in the Service Order, including any renewals  (“Subscription Term”).  Pear.ai shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, during the Subscription Term, except for planned down time, subject to Pear.ai’s prior electronic notice, and any unavailability caused by circumstances beyond Pear.ai’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay or a denial of service attack.

1.2 Authorized Users. The Service may be used and accessed by or on behalf of Customer by its and its Affiliate’s employees and subcontractors (“Personnel”) in accordance with these Terms, provided that all such usage must be for, and within the scope of, the Permitted Use.

1.3 Customer Obligations. Customer, and its users, shall maintain in confidence any user ID and/or passwords used to access and use the Service.  Customer will be fully responsible for all use of the Service and related Pear.ai Technology under Customer’s account.  Customer will immediately notify Pear.ai of any unauthorized disclosure or loss of its password or other unauthorized use of the Service through Customer’s account.

1.4 Restrictions. All rights not expressly granted to Customer in these Terms are reserved to Pear.ai and, if applicable, its licensors.  Customer acknowledges that the Service contains valuable confidential information and trade secrets and that unauthorized use and/or copying would be harmful to Pear.ai. Accordingly, Customer will not nor permit any Personnel or other agent or third party to: (i) make the Service available to anyone not authorized in the Service Order; (ii) sell, rent, lease, sublicense, distribute or use the Service (or any portion thereof) for time sharing purposes or to provide services to any third party or otherwise for the benefit of any third party; (iii) use the Service to store or transmit any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code (sometimes referred to as “traps”, “access codes” or “trap door” devices) (“Malicious Code”); (iv) interfere with or disrupt the integrity or performance of the Service or third party data contained therein; (v) attempt to gain unauthorized access to the Service or Pear.ai Technology or its related systems or networks (vi) permit direct or indirect access to or use any of the Service or Pear.ai Technology in a way that circumvents a contractual usage limit, or use the Service in a manner that violates this Agreement or use of the Pear.ai Technology except as permitted by this Agreement and/or the Service Order; (vii) modify, copy or create derivative works based on the Service, Pear.ai Technology or any part, feature function or user interface thereof; (viii) decompile, disassemble, or otherwise reverse engineer the Service or any part of the Pear.ai Technology; (ix) aggregate, copy or duplicate any portion of the Pear.ai Technology except as reproduction may be permitted in the Service Order; (x) use the Service in an illegal way or to commit an illegal act or transmit through the Service any infringing, obscene, threatening, harmful, libelous, unlawful or otherwise objectionable material, including material that violates any privacy rights; (xi) frame or mirror any part of the Service or Pear.ai Technology, other than framing as provided in a Permitted Use; (xii) access or use the Pear.ai Technology from a jurisdiction where it is illegal, unauthorized or penalized; or (xiii) access or use the Pear.ai Technology to build or improve a competitive product or service.

1.5 Proprietary Rights Notices; Publicity. Customer further agrees that it will not (i) remove any copyright or proprietary notices contained in any and all charts, graphs, reports, statistics and other information output from the Service that is made available to Customer or can otherwise be retrieved or accessed by Customer through the Service (“Output”); or (ii) use or display any Pear.ai trademarks except as authorized in writing by Pear.ai.  Pear.ai agrees that it will not issue any press release, use Customer’s name, logo or trademarks or otherwise make any public statements or communications regarding the existence or content of this Agreement or the relationship of the parties without Customer’s prior written consent in each case; provided that, without such consent, Pear.ai may list Customer’s name in Pear.ai’s customer lists on Pear.ai’s website and in its marketing materials to prospective customers. 

1.6 Ownership of Pear.ai Technology. Except for the rights expressly granted to Customer under this Agreement, Pear.ai reserves all right, title and interest (including all related Intellectual Property Rights), in and to the Service and other Pear.ai Technology.  No rights are granted pursuant to this Agreement other than as expressly set forth herein. If Customer or any user chooses to provide Pear.ai any feedback or recommendations regarding the Service or other Pear.ai Technology, Pear.ai is free to use and exploit in any way such feedback and recommendations without restriction or liability to Customer or any third party, including payment of any royalty or other fees. Notwithstanding anything in this Section 1 or otherwise in this Agreement, the Service may include certain third party code covered by third party licenses in the Service.  As used in these Terms, “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, United States patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.

1.7 Ownership of Customer Data. As between Customer and Pear.ai, and except for the rights granted to Pear.ai under this Agreement, Customer owns and will continue to own all right, title and interest (including all related Intellectual Property Rights), in and to the information which Customer inputs, or provides to Pear.ai for inputting, into the Service and, if applicable, any other data that is provided by Customer to Pear.ai as part of Customer’s use of the Service, including as part of the Output (“Customer Data”). Customer grants Pear.ai the non-exclusive worldwide right to copy, store, record, transmit, display view, print or otherwise use Customer Data to the extent necessary to provide, support and improve the Service under this Agreement and for its own business purposes on an anonymized and aggregated basis in a manner that does not disclose Customer as the source. 

1.8 Non-Exclusivity. Nothing in these Terms will be deemed to create any exclusive obligation on the part of either party.

2. Data Security

2.1 Use of Service and Access to Customer Data. Pear.ai maintains its own infrastructure and controlled environment in connection with the operation of the Service. Customer can elect to forward Customer Data in the manner selected by Customer, subject to Pear.ai’s reasonable approval.

2.2 Safeguards. Pear.ai will implement and maintain administrative, physical and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any Customer Data as may be held or accessed by Pear.ai.  Such safeguards will include, without limitation, an information security program that meets industry practice to safeguard Customer Data.

2.3 Notification of Security Breach. Pear.ai will notify Customer immediately following its discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Customer Data hosted by Pear.ai.  Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of Pear.ai’s investigation and, if known and applicable, the potential number of Persons (defined below) affected by release of data relating to such Person (“Affected Persons”).  “Person” refers to an identifiable user, whether entity or natural person, [as represented by a unique IP address]. If applicable, upon written request from Customer, Pear.ai agrees to notify the Affected Persons regarding any security breach in a form approved in writing by Customer.  Such notices will be delivered within a reasonable time at Customer’s direction. All Pear.ai costs associated with any such security breach will be the sole responsibility of Pear.ai.  Pear.ai agrees that, unless required under applicable law or to the extent such security breach affects any other customers, it will not communicate with any third party, including, but not limited to, the media, vendors, consumers and Affected Persons regarding any such security breach without the express written consent and direction of Customer.

 

3. Representations, Warranties, and Covenants

3.1 Pear.ai’s Representations, Warranties and Covenants. Pear.ai represents and warrants to Customer that:

3.1.1 Due Authority. Pear.ai has full right, power and authority to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Pear.ai may have to any other party.

3.1.2 Standard of Performance. Pear.ai shall use commercially reasonable efforts to perform the Service substantially in compliance with Pear.ai’s applicable documentation in accordance with these Terms, including the Service Order.

3.1.3 Compliance with Laws. Pear.ai’s performance of its obligations under this Agreement will be in compliance with any statutes, orders and regulations, including, without limitation, those relating to privacy and data protection, in the United States that are applicable to such performance.

3.1.4 Non-Infringement. The Service as provided by Pear.ai does not and will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party. 

3.2 Exclusive Remedies. In the event of Pear.ai’s breach of the warranties set forth in Section 3.1.1, 3.1.3 or 3.1.4, Customer’s sole and exclusive remedy and Pear.ai’s exclusive liability and obligation, will be Pear.ai’s obligations under Section 7.  In the event of Pear.ai’s breach of the warranties set forth in Section 3.1.2, Customer’s sole and exclusive remedy and Pear.ai’s exclusive liability and obligation, will be (upon Customer’s prompt written notice of such breach and Pear.ai’s verification of such breach) to re-perform the defective Service so that it complies with the applicable standards for the Service set forth above.    

3.3 Customer’s Representations, Warranties and Covenants.  Customer represents and warrants to Pear.ai that:

3.3.1 Due Authority. Customer has full right, power and authority to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Customer may have to any other party.

3.3.2 Compliance with Laws. Customer’s performance of its obligations under this Agreement will be in compliance with any statutes, orders and regulations, including, without limitation, those relating to privacy and data protection, in the United States that are applicable to such performance.

3.3.3 Non-Infringement. The Customer Data as provided by Customer does not and will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party. 

3.4 Warranty Disclaimers. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE AND ALL OUTPUT ARE PROVIDED BY PEAR.AI ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY AND MAY CONTAIN TECHNICAL INACCURACIES OR OTHER ERRORS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PEAR.AI AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT PEAR.AI DOES NOT CONTROL THE TRANSFER OF DATA OVER SYSTEMS, NETWORKS AND OTHER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, CONTROLLED BY THIRD PARTIES AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PEAR.AI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

4. Payment Terms

4.1 Payment Obligation. In exchange for Pear.ai’s obligations under this Agreement, Customer will pay Pear.ai the Fees set forth on each Service Order. Unless otherwise provided on the Service Order, invoices are due and payable net thirty (30) days from invoice date. Unless otherwise provided in the applicable Service Order, Fees for each annual period of the Subscription Term (“Annual Term”) will be billable to Customer on an annual basis, in advance, and will be due and payable net thirty (30) days.  

4.2 Pricing Adjustments. Pear.ai reserves the right to increase Fees for subsequent Annual Terms, subject to sixty (60) days prior notice to Customer.

4.3 Disputed Invoices. Upon notice to Pear.ai, Customer may withhold payment for only those portions or item(s) on Pear.ai’s invoice(s) that Customer reasonably disputes. Upon the occurrence of such dispute, the Parties will endeavor to work together in good faith for a period of twenty (20) days to resolve the dispute.  If, at the end of such twenty (20) day period the Parties have not been able to resolve the dispute they will endeavor to resolve it pursuant to Section 9.6 below.  

4.4 Taxes. All Fees are stated and payable in U.S. dollars and are exclusive of sales, use, excise, property or any other taxes. Customer is responsible for payment of all such taxes (except those based on Pear.ai’s net income or assets).

5. Term and Termination

5.1 Subscription Term Renewal.  Unless otherwise stated in any Service Order, the Subscription Term for the Service will automatically renew for a subsequent Subscription Term of equal length, unless (a) either Party elects not to renew by giving the other Party at least sixty (60) days prior written notice, or (b) this Agreement is terminated by either Party as provided in Section 5.2 or as otherwise provided in this Agreement.

5.2 Termination. 

5.2.1 Pear.ai may terminate this Agreement, including the Service Order, immediately, in whole or in part, without further obligation to Customer in the event of: (i) any material breach by Customer of this Agreement which is not cured within 30 days of written notice (or in the case of any breach of Section 1.4 (Restrictions), if not cured within 7 days of written notice); or (ii) use of the Service by Customer (A) in breach of this Agreement, presents a material security risk or will interfere materially with the proper continued operation of the Service and related Pear.ai Technology, or (B) is subject to an order from a court or governmental entity stating that such use generally or for certain activities must stop.  The Parties agree that Customer’s material breach of this Agreement includes but is not limited to (1) Customer’s failure to pay Fees, or (2) Customer’s use of the Service or other Pear.ai Technology outside the Permitted Use or otherwise contrary to Section 1.

5.2.2 Customer may terminate this Agreement, including the Service Order, immediately, in whole or in part: (i) if Pear.ai is in material breach of this Agreement which is not cured within 30 days of written notice by Customer to Pear.ai, or (ii) if the Service as provided by Pear.ai (A) presents a material security risk or will interfere materially with the proper continued operation of a data center or related services or (B) is subject to an order from a court or governmental entity stating that such use generally or for certain activities must stop.

5.3 Pilot Project Termination and Renewal.  Notwithstanding any of the foregoing or any other provision of these Terms, if the Service Order is for a pilot project or other trial evaluation use (“Pilot Project”), then (a) either Party may terminate the Pilot Project at any time during its Subscription Term upon thirty (30) days prior written notice of termination; and (b) upon expiration or termination of the Subscription Term of the Pilot Project, the Subscription Term shall not renew, and any agreement between the Parties for production, commercial use of the Service shall be subject to a separate Service Order or other written agreement between the Parties for such use.     

5.4 Effect of Termination.  Upon any expiration of the Subscription Term of the Service Order or any termination of this Agreement, (a) Customer’s license or right to use or access the Service and related Pear.ai Technology will immediately terminate; and (b) Customer will pay Pear.ai for its access to the Service provided up to termination and any other amounts owed under the applicable Service Order(s) and this Agreement.  Subject to Customer’s compliance with the foregoing, and unless Pear.ai terminates this Agreement for cause pursuant to Section 5.2.1, Pear.ai will, within 30 days of termination, provide in a mutually agreeable form and format, or give limited access to Customer to download, any Customer Data that Pear.ai is hosting as part of the Service.  After such delivery or time period for download, Pear.ai will no longer have any obligation to provide or make available any such Customer Data to Customer and may delete any and all such Customer Data from its servers.  Termination is not an exclusive remedy and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise, except as otherwise provided in this Agreement.

5.5 Survival.  Section 1.4 (Restrictions), 1.5 (Proprietary Rights Notices; Publicity), 1.6 (Ownership of Pear.ai Technology), 1.7 (Ownership of Customer Data), 1.8 (Non-exclusivity), 3.4 (Warranty Disclaimers), 4 (Payment Terms), 5 (Term and Termination), 6 (Confidential Information), 7 (Indemnification), 8 (Liability Limitation) and 9 (General Provisions) will survive any termination or expiration of this Agreement.

6. Confidential Information

6.1 Confidential Information” means all information or data (whether in written, oral, electronic or other form) designated by the disclosing Party as confidential or related to the disclosing Party’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from the Party related to the Party’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary.  Confidential Information includes all Customer Data and related Output (where Customer is the disclosing Party) and all Pear.ai Technology (where Pear.ai is the disclosing Party).

6.2 Obligations.  Other than in the performance of this Agreement, the receiving Party will not use or disclose any Confidential Information of the disclosing Party which is obtained from the disclosing Party or otherwise prepared or discovered by the receiving Party, either in the performance of this Agreement or through access to the Service or other Pear.ai Technology.  The receiving Party will protect the confidentiality of the Confidential Information of the disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no event less than reasonable care. The receiving Party is responsible for ensuring compliance with these terms by all persons and entities that obtain access to the disclosing Party’s Confidential Information, through or on behalf of the receiving Party.  Each Party represents and warrants to the other Party that each such Party’s employee, agent, or subcontractor who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them.

6.3 Exceptions.  The provisions of this Section 6 relating to use and disclosure will not apply to any information that: (i) is rightfully known to the receiving Party prior to disclosure hereunder; (ii) is rightfully obtained by the receiving Party from any third party without restrictions on disclosure; (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by the receiving Party with the prior written approval of the disclosing Party.  If the receiving Party is required by law to disclose any Confidential Information, then, prior to any such disclosure, the receiving Party will provide the disclosing Party with reasonable prior notice and will obtain, or provide the disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information.

7. Indemnification

7.1 Indemnification by Pear.ai. Pear.ai will defend Customer (including its directors, officers, employees and agents) from and against any claims, demands or proceedings (“Claims”) brought against Customer to the extent alleging that the Service or any other Pear.ai Technology provided by Pear.ai infringes any third-party Intellectual Property Right, and Pear.ai will pay the losses, costs, expenses, damages or other liabilities of any nature (including reasonable attorneys’ fees and any of the foregoing related thereto) (“Damages”) finally awarded with respect to, or agreed to by Pear.ai in settlement of, any such Claims; provided that the foregoing obligations exclude Claims and Damages to the extent relating to: (i) modifications to the Service or other Pear.ai Technology in accordance with written specifications provided by Customer where the Service or other Pear.ai would not be infringing without such modifications; (ii) use by Customer of the Service or other Pear.ai outside the Permitted Use or otherwise in a manner not permitted by this Agreement, (iii) the combination by Customer of the Service or other Pear.ai Technology with other software or hardware not provided by Pear.ai, where the combination causes the infringement and the Service or other Pear.ai Technology standing alone would not cause such infringement, (iv) any Customer Data, or (v) third party code. 

7.2 Additional Options. If the Service becomes, or in Pear.ai’s opinion is likely to become, the subject of a Claim as provided in Section 7.1, Pear.ai may, at its option and sole discretion, (i) obtain for Customer the right to continue to use the Service and other Pear.ai Technology as provided in this Agreement; (ii) replace the affected Service or other Pear.ai Technology with other products or services that provide similar functionality; or (iii) if Pear.ai determines that neither of the foregoing options are reasonably available, Pear.ai may cease providing the Service and require that Customer cease use of the Service and related Pear.ai Technology. In that event, Pear.ai will refund to Customer any subscription Fees that Customer paid Pear.ai for the period after the effective date of termination.

7.3 Indemnification by Customer. Customer will defend Pear.ai (including its directors, officers, employees and agents) from and against any Claims by a third party (a) that the Customer Data furnished to Pear.ai by Customer and employed by Pear.ai in the course of performing the Service as authorized hereunder infringes, misappropriates or violates such third party’s Intellectual Property Rights or (b) arising from Customer’s use of the Service or other Pear.ai Technology in breach of this Agreement, and Customer will pay the Damages finally awarded with respect to, or agreed to by Customer in settlement of, any such Claims; provided that the foregoing obligations exclude Claims and Damages to the extent relating to unauthorized modifications to or unauthorized use by Pear.ai of Customer Data.  

7.4 Indemnification Procedures.  If a Party (“Indemnified Party”) seeks indemnification under this Agreement, the Indemnified Party will: (i) give prompt notice to the other party (“Indemnitor”) concerning the existence of the Claim; (ii) grant authority to Indemnitor to defend or settle any related action or claim; and, (iii) provide, at Indemnitor’s expense, such information, cooperation and assistance to Indemnitor as may be reasonably necessary for Indemnitor to defend or settle the claim or action.  An Indemnified Party’s failure to give prompt notice will not constitute a waiver of the Indemnified Party’s right to indemnification and will affect Indemnitor’s indemnification obligations only to the extent that Indemnitor’s rights are prejudiced by such failure or delay.  An Indemnified Party may participate, at its own expense, in any defense and settlement through counsel of its choice but will not settle or compromise the Claim without the Indemnitor’s prior written consent. The Indemnitor will not enter into any settlement agreement on terms that would diminish the rights provided to the Indemnified Party or increase the obligations assumed by the Indemnified Party under this Agreement, without the prior written consent of the Indemnified Party. 

7.5 Exclusive Remedies. Notwithstanding anything in this agreement to the contrary, this Section 7 sets forth each Party’s and their respective suppliers’ sole liability and the other Party’s sole and exclusive remedy with respect to any claim of infringement of third party Intellectual Property Rights.
 

8. Liability Limitation

8.1 Consequential Damages Waiver. EXCEPT WITH RESPECT TO A PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTION 1.3 (RESTRICTIONS) OR SECTION 6 (CONFIDENTIAL INFORMATION), OR ITS LIABILITY PURSUANT TO SECTION 7 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

8.2 Liability Limitation.  EXCEPT WITH RESPECT TO A PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTION 1.3 (RESTRICTIONS) OR SECTION 6 (CONFIDENTIAL INFORMATION) OR ITS LIABILITY PURSUANT TO SECTION 7 (INDEMNIFICATION), AND EXCLUSIVE OF CUSTOMER’S PAYMENT OBLIGATIONS PURSUANT TO THIS AGREEMENT, in no event will either party’s total, cumulative liability for any loss, cost, claim, legal action or damages of any kind arising out of or related to this Agreement (whether in contract, tort, strict liability or any other theory) exceed the amount of fees actually paid by Customer to Pear.ai PURSUANT TO THE APPLICABLE SERVICE ORDER during the twelve (12) months prior to the first event giving rise to such claim or damages.

9. General Provisions 

9.1 Assignment. Neither Party may assign or delegate this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided that either Party may, with notice to the other Party, assign this Agreement and its rights and obligations under this Agreement to (i) such Party’s successor pursuant to a merger, reorganization, consolidation or sale, or (ii) an entity that acquires all or a substantial portion of those of such Party’s assets or business to which the Service relate.  In addition, Pear.ai may delegate its obligations pursuant to this Agreement to its subcontractors but remains responsible for performance of such obligations.  Any attempted assignment or delegation in contravention of this Section will be null and void, and of no force or effect. This Agreement is binding upon, and is for the benefit of, the legal successors and permitted assigns of the Parties.

9.2 Notices. Notices concerning this Agreement must be in writing and given to the representative who signed the Service Order on behalf of the intended recipient Party.  Notices are deemed given: (i) when actually received by such representative for the intended recipient, or (ii) when delivered to the address set forth for such representative(s) on the cover page of this Agreement; provided the notice is sent to such representative(s) by certified or registered mail (return receipt requested) or commercial express courier (with tracking capabilities), or by e-mail (followed by confirming copy using another method for notice above).  Either Party may change its address(es) or representative(s) for receiving notices upon notice to the other Party.

9.3 Waiver. Waiver of any provision of this Agreement must be in writing signed by an authorized representative of the waiving Party.  Waiver by either Party of any default will not constitute a waiver of any other or subsequent default. 

9.4 Force Majeure. A Party will be excused from a delay in performing, or a failure to perform, its obligations under the Agreement (other than payment obligations) to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party.  In such event, the performance times will be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than sixty (60) days, the Party not relying on the excusable delay may terminate the Agreement upon notice to the other Party.  In order to avail itself of the relief provided in this Agreement, a Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.

9.5 Remedies and Dispute Resolution. 

9.5.1 Injunctive Relief.  The Parties acknowledge that a Party’s breach of the confidentiality terms of this Agreement and/or violation of the other Party’s Intellectual Property Rights may cause irreparable harm for which the injured Party will not have an adequate remedy available at law.  The injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting bond or other security and without prejudice to such other rights as may be available under this Agreement or applicable law.  Unless otherwise expressly provided all remedies are cumulative. 

9.5.2 Dispute Resolution. Except as provided in 9.5.1 above with respect to matters requiring injunctive or other equitable relief, the Parties will refer any disputed matter between the Parties (“Dispute”) to their respective senior level managers, who will seek to resolve such Dispute within ten (10) days of notice by one Party to the other of the Dispute.  If the Parties are unable to resolve the Dispute as provided, or pursuant to an extended time period as agreed by the Parties, the Parties agree that the exclusive means of initiating adversarial proceedings to resolve the Dispute, will be arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each Party hereby consents to any such dispute being so resolved.  Each of the Parties will bear all the fees and costs incurred by it during the course of the arbitration, and, at the conclusion of the arbitration, the non-prevailing Party will reimburse the prevailing Party for such costs.

9.6 Interpretation; Severability. Each Party acknowledges and agrees that any interpretation of the Agreement will not be construed against a Party by virtue of its having drafted the provisions hereunder. If a court of competent jurisdiction declares any provision of the Agreement to be invalid, the Parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law.  If such provision cannot be so amended and construed, it will be severed, and the remaining provisions remain unimpaired and in full force and effect to the fullest extent permitted by law.

9.7 Entire Agreement. These Terms, including the Service Order(s), constitute the complete understanding of the Parties, and supersedes all prior or contemporaneous agreements, proposals, representations, and understandings (whether written or oral) between the Parties, with regard to the subject matter of this Agreement.  Unless this Agreement states otherwise, this Agreement may be modified only in writing and signed by an authorized representative of each Party.  In the event of conflict among the documents comprising this Agreement with respect to a particular Service, these Terms shall govern and control unless the Service Order expressly states otherwise and identifies the provision in these Terms it is intended to supersede.  

9.8 Governing Law.  This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of California and the United States without regard to conflicts of laws provisions thereof. Judgment on any award rendered in any arbitration may be entered in any court having jurisdiction. Each party irrevocably submits to the jurisdiction and venue of the state and federal courts located in San Francisco, California.