Terms of Service

1. Agreement to Terms and Conditions

This Agreement is effective, and you agree to be bound by this Agreement, as of the Order Form Date specified on the applicable Order Form incorporating this Agreement (“Effective Date”). If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement.

2. Definitions

• “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer's and/or its Authorized Users' use of the TriFetch Platform, including, without limitation, any usage data or trends with respect to the TriFetch Platform. For clarity, Aggregate Data will always be in deidentified form, will not constitute PHI, and will not be governed by the BAA.
• “Authorized Equipment” means computer hardware equipment, conforming to specifications provided by TriFetch, that (i) is owned or controlled by Customer and (ii) contains the Licensed Software.
• “Authorized Users” means employees, agents, or consultants authorized by Customer to use the TriFetch Software.
• “Documentation” means the documentation relating to the TriFetch Software if and as provided by TriFetch to Customer (including any revised versions thereof), which may be updated from time to time upon notice to customer.
• “Hosted Software” means the cloud-hosted features or functionalities of the TriFetch Software which TriFetch makes available to Customer, as more particularly described or identified in the applicable Order Form.
• “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
• “Licensed Software” means the on-premises implementation of the TriFetch platform installed by or on behalf of TriFetch on Customer's systems or servers, in object code format only, as more particularly described or identified in the applicable Order Form, and any updates, patches, bug fixes and upgrades made available by TriFetch from time to time thereto.
• “Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable features of the TriFetch Software to be provided by TriFetch, and identifies any Professional Services to be provided by TriFetch therewith.
• “Professional Services” means the implementation and/or other professional services, if any, to be provided by TriFetch to Customer as set forth in the relevant Order Form.
• “TriFetch IP” means the Documentation, Hosted Software, Licensed Software, and TriFetch Software; the underlying software provided in conjunction with the TriFetch Software; all algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the TriFetch Software, Documentation, Aggregate Data (as defined below), and any Professional Services; all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship); and all Intellectual Property Rights in and to any of the foregoing.
• “TriFetch Software” means, collectively, the Hosted Software and the Licensed Software, as both may be more particularly described or identified in the applicable Order Form.

3. Privacy

• Privacy Notice. Please review TriFetch’s Privacy Notice, available at trifetch.ai/legal/privacy-notice, which also governs how TriFetch collects, uses and shares Customer’s and Authorized Users’ information.
• Protected Health Information. The Parties acknowledge that, in connection with the TriFetch Software, Customer may transmit and TriFetch may create, receive, maintain, or transmit protected health information (“PHI”) (as defined under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA)), the Business Associate Agreement attached hereto as Exhibit A (the “BAA”) will apply to and govern the Parties’ use, disclosure, and safeguarding of all PHI and ePHI.

4. Licensed Software; Access and Use

(a) Licenses to Customer

Subject to the terms and conditions of this Agreement, TriFetch hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(b)) right, during the Term, in accordance with the Documentation and the terms of this Agreement, to (i) install and use (and permit Authorized Users to use) the Licensed Software on the Authorized Equipment; and (ii) access and use (and permit Authorized Users to access and use) the Hosted Software.

(b) Use Restrictions

Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly:

• copy, modify or create any derivative work of any portion of the TriFetch Software or the Documentation;
• reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the TriFetch Software, in whole or in part;
• frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the TriFetch Software to any other person or entity, or otherwise allow any person or entity to use the TriFetch Software for any purpose other than for the benefit of Customer in accordance with this Agreement;
• use the TriFetch Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law;
• interfere with, or disrupt the integrity or performance of, the TriFetch Software, or any data or content contained therein or transmitted thereby;
• combine or integrate the Licensed Software with hardware, software or technology not provided or recommended in writing to Customer by TriFetch;
• use the Licensed Software, Documentation or any other TriFetch Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Licensed Software; or
• use the TriFetch Software or any portion thereof to train, improve or have trained or improved an AI model (e.g., engage in "model scraping").

(c) Additional Input and Output Specific Terms

The TriFetch Software may generate outbound phone calls with messages performed by synthetic human performers, written call transcripts, call summaries, and other materials or documents (each, “Output”) in response to Customer Materials uploaded to influence the behavior and Output of the TriFetch Software (collectively, “Input”). As between the Parties, (1) Customer owns all Input provided by Customer; and (2) subject to Customer’s compliance with this Agreement, TriFetch assigns to Customer its right, title and interest in and to the Output generated by Customer’s Input. Notwithstanding the foregoing, Customer may not: (A) use Output to develop AI or machine learning models that compete with TriFetch; (B) sell Output to any third parties; nor (C) share Output with any third party other than Customer’s end users. TriFetch may use and modify Input and Output to provide, maintain, develop, train, fine-tune and improve the TriFetch Software and TriFetch’s models, algorithms, and artificial intelligence technologies (including, without limitation, as training data); to verify general updates and improvements to the TriFetch Software; and to comply with applicable law.

(d) Authorized Users

Customer may permit Authorized Users to use the TriFetch Software in accordance with the Documentation and the terms of this Agreement, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the TriFetch Software and their compliance with the terms and conditions of this Agreement. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the TriFetch Software in accordance with customary security protocols, and will promptly notify TriFetch if Customer knows or reasonably suspects that any username and/or password has been compromised.

(e) Delivery

In accordance with any terms provided in the applicable Order Form, TriFetch will make the Licensed Software available to Customer using commercially reasonable means (e.g., via electronic download or otherwise) and Customer will promptly install the Licensed Software on the Authorized Equipment and ensure that it is connected to the internet. Delivery will be deemed complete upon receipt by Customer of media, including electronic media, upon which the Licensed Software and Documentation is digitally stored or made available to Customer.

(f) Customer Cooperation and Connection Obligations

Customer will fully cooperate with TriFetch to enable TriFetch to provide the Professional Services, as applicable, including without limitation, by (i) providing access to Customer’s facilities, systems, data and equipment of Customer; and (ii) promptly taking any other reasonable request of TriFetch in connection with TriFetch’s provision of the Professional Services. Customer will bear sole responsibility for providing and maintaining the Authorized Equipment and any computer systems, networks, telecommunications systems, consistently-maintained Internet access, third party services, equipment, hardware, or any other materials or conditions required to meet the minimum technical requirements specified by TriFetch in order to operate the Licensed Software on the Authorized Equipment. Customer will ensure that the TriFetch Software remains connected to the internet at all times so that it can communicate with TriFetch’s back-end systems and processes as required for the TriFetch Software to operate. TriFetch will have no liability under this Agreement for any damages, delays, downtime, or performance delays arising, in whole or in part, from Customer’s non-compliance with the foregoing requirements of this Section.

(g) Ownership of TriFetch IP

Subject to the limited rights expressly granted hereunder, TriFetch reserves and, as between the Parties will solely own, the TriFetch IP and all rights, title and interest in and to the TriFetch IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(h) Pilot Access to TriFetch Software

From time to time, TriFetch may make a Pilot available to Customer. “Pilot” means an implementation of the Hosted Software and/or Licensed Software that may be made available to Customer to try at Customer’s option which is designated as a “Pilot” in the applicable Order Form, and which extends for the duration (the “Pilot Period”) specified in the applicable Order Form. Pilots are intended only for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Pilots are a part of the “TriFetch Software” under this Agreement, and all restrictions, disclaimers, TriFetch’s reservation of rights, and Customer’s obligations concerning the TriFetch Software shall apply to the use of Pilots; provided that, notwithstanding Sections 9, 11, 12, or anything else to the contrary herein, all Pilots are provided “as is” without warranty of any kind, and no indemnities, obligations, service levels, availability requirements, or other obligations of TriFetch applicable to the TriFetch Software hereunder will apply to Pilots, AND TRIFETCH HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR AND IN CONNECTION WITH ALL PILOTS AND CUSTOMER’S USE THEREOF. Either Party may terminate a Pilot for any reason within seven (7) days of the expiration of the Pilot Period, and if neither Party terminates the Pilot during such period, then the Term specified in the applicable Order Form will automatically commence for the duration specified in the applicable Order Form and in accordance with the terms and conditions of this Agreement.

(i) Feedback

From time to time, Customer or its employees, contractors, representatives may provide TriFetch with suggestions, comments, feedback or the like with regard to the TriFetch Software (collectively, “Feedback”). Customer hereby grants TriFetch a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with TriFetch’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the TriFetch Software. For clarity, Feedback is not considered Confidential Information (as defined below).

(j) Third-Party Services

Certain features and functionalities within the TriFetch Software may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible integrate with and depend upon third-party services, products, technology and content (collectively, “Third-Party Services”). TriFetch does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the TriFetch Software or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the TriFetch Software.

5. Fees

In payment for Customer’s access to the TriFetch Software during the Term, Customer shall pay TriFetch (i) the non-refundable monthly subscription fee specified on the applicable Order Form (the “Subscription Fee”); and (ii) any other fees set forth on the applicable Order Form (collectively, the “Fees”). Except as otherwise provided in the applicable Order Form, TriFetch will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, TriFetch will charge Customer’s selected payment method (such as a credit card) for any Fees on the applicable payment date, including any applicable taxes. If TriFetch cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and TriFetch will attempt to charge the payment method again as Customer may update its payment method information. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and TriFetch may suspend TriFetch Software until all payments are made in full. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to TriFetch hereunder, other than any taxes imposed on TriFetch’s income.

6. Customer Materials

Customer hereby grants TriFetch and its licensors a non-exclusive, worldwide, royalty-free right and license (with right to sublicense through multiple tiers to Customer’s third-party service providers, such as its third-party AI service providers) to use, reproduce, display, perform and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the TriFetch Software and Professional Services, improving other systems and technologies, and, subject to the terms and conditions of the applicable BAA, for the purpose of creating or developing Aggregate Data. As between Customer and TriFetch, Customer owns and retains all right, title and interest in and to all Customer Materials. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the TriFetch Software or to TriFetch in connection with Customer’s use of the TriFetch Software, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by TriFetch and made available through or in connection with the TriFetch Software.

7. Confidential Information

(a) Confidentiality

“Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the TriFetch Software and the Documentation will be deemed Confidential Information of TriFetch. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that TriFetch may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

(b) Exclusions

Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.

8. Publicity

Subject to Customer’s prior written consent (not to be unreasonably withheld), TriFetch may use or refer to Customer’s name, trademarks, service marks, or logos in any marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of TriFetch and in case studies.

9. Representations and Warranties; Disclaimer

(a) Mutual Representations

Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.

(b) Customer Additional Representations

Customer represents and warrants that TriFetch’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party.

(c) Professional Services Warranty; General Disclaimer

TriFetch warrants that Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Customer’s sole and exclusive remedy and TriFetch’s entire liability for any breach of the foregoing warranty, TriFetch will promptly re-perform any Professional Services that fail to meet this limited warranty.

(d) AI Disclaimers

Due to the nature of machine learning, Output may not be unique, and the TriFetch Software may generate the same or similar output for Customer or a third party.

(e) No Medical Advice

10. Term and Termination

(a) Term

This Agreement shall commence on the Effective Date and will remain in effect as specified on the applicable Order Form (the “Term”).

(b) Termination

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 remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

(c) Survival

This Section 10(c) and Sections 1, 3, 4(b), 4(c), 4(g), 4(i), 7, 9, 11, and 13 survive any termination or expiration of this Agreement.

(d) Effect of Termination

Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 4(a) will terminate; and (ii) Customer will return or destroy, at TriFetch’s sole option, all TriFetch Confidential Information in its possession or control, including permanent removal of such TriFetch Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at TriFetch’s request, certify in writing to TriFetch that the TriFetch Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

11. Limitation of Liability

(a) Limitation of Liability

(b) Total Liability

12. Indemnification

(a) Indemnification by TriFetch

Subject to Section 12(b), TriFetch will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s use of the TriFetch Software infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by TriFetch (including reasonable attorneys’ fees) resulting from such Claim.

(b) Exclusions

TriFetch’s obligations under Section 12(a) will not apply if the underlying Claim arises from or as a result of:

• Customer's breach of this Agreement, negligence, willful misconduct or fraud;
• any Customer Materials;
• Customer's failure to use any enhancements, modifications, or updates to the TriFetch Software that have been provided by TriFetch;
• modifications to the TriFetch Software by anyone other than TriFetch; or
• combinations of the TriFetch Software with software, data or materials not provided by TriFetch.

(c) Indemnification by Customer

Customer will defend, indemnify and hold harmless TriFetch from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against TriFetch, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against TriFetch that: (i) the Customer Materials or its use by TriFetch in accordance with this Agreement infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the TriFetch Software or Documentation to the extent such use was not in accordance with this Agreement; or (iii) is based on a breach of Section 4(b) by Customer.

13. General

• (a) Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
• (b) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party's prior written consent. Notwithstanding the foregoing, TriFetch may assign or transfer this Agreement without consent to a third party that succeeds to all or substantially all of TriFetch's business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Any attempt to assign or transfer this Agreement in violation of this Section will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
• (c) Notices. All notices required to be sent hereunder will be in writing (email being sufficient), will be sent using the contact information provided in the applicable Order Form, and will be deemed to have been given when mailed by United States Postal Service Priority Express Mail, with delivery confirmation, postage prepaid, or sent by email, and if sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party.
• (d) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other's behalf without such other Party's prior written consent.
• (e) Waiver. Either Party's failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
• (f) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
• (g) Export Regulation. Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States ("Trade Laws") to ensure that the TriFetch Software are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.
• (h) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
• (i) U.S. Government End Users. The TriFetch Software was developed solely at private expense and is a "commercial product", "commercial item", or "commercial computer software" as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the TriFetch Software by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the TriFetch Software.