This End User Agreement (this “Agreement”), effective as of the date End User first accesses or uses the Telegraph Software (“Effective Date”), is entered into by and between the entity accessing or using the Telegraph Software (“End User”) and Telegraph System, Inc., a Delaware corporation (“Telegraph”), and constitutes a binding condition of End User’s use of the Telegraph Software (each, a “Party” and collectively, the “Parties”).
Background
A. End User will have access to and use of the Telegraph Software through a third party that is not affiliated with Telegraph (the “Third Party Provider”), and Telegraph makes no representations or warranties regarding such Third Party Provider or its services.
B. The Third Party Provider will enable End User’s access to and use of the Telegraph Software as part of an integration with Third Party Provider’s customer portal, or other Non-Telegraph Products and Data.
C. As a condition of End User’s access to and use of the Telegraph Software, Third Party Provider is required to obtain End User’s agreement to the terms and conditions herein.
“Documentation” means the user manuals, specifications, and policies, which may be updated from time to time by Telegraph, that describe the functionality, features, operation, or use of the Telegraph Software.
“End User” is defined above.
“Input Data” means: (a) data transmitted by End User into the Telegraph Software; and (b) data otherwise provided by the End User to Telegraph for Telegraph’s provision of the Telegraph Software, including any and all modifications, updates, or additions to such data during the Term.
“Non-Telegraph Products and Data” means any applications, products, services, or data provided by a third party to End User that incorporate, are incorporated into, integrate with, or otherwise interoperate with the Telegraph Software.
“Output Data” means data generated by End User’s use of the Telegraph Software with Input Data.
“Supported Environment” means the minimum hardware, software, and connectivity configurations, which may be updated from time to time by Telegraph upon reasonable advance written notice to the Client, that must be implemented and used in order to use, operate, and/or deploy, as applicable, the Telegraph Software in accordance with this Agreement.
“Telegraph Software” means the software and any related materials to be provided by Telegraph, excluding Input Data, the Supported Environment, and any Non-Telegraph Products and Data.
2. Telegraph Software
The terms of this Agreement apply to updates and upgrades of the Telegraph Software subsequently provided by Telegraph. Telegraph may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion.
3. Access to and Use of the Telegraph Software
3.1 End User Accounts. End User accounts are personal, non-transferable, and may not be shared or used by more than one individual. Any attempt to share or transfer accounts will constitute a material breach of this Agreement. End User is responsible for maintaining the security and confidentiality of its logins, passwords, and accounts and for all activities that occur under End User accounts.
3.2 Supported Environment. As between Telegraph and End User, End User is solely responsible for obtaining and maintaining, at End User’s expense, the Supported Environment.
3.3 Non-Telegraph Products and Data. Any use by End User of such Non-Telegraph Products and Data is, between the Parties, not the responsibility of Telegraph, and the End User is/are solely responsible for determining if such Non-Telegraph Products and Data are appropriate for their use; (b) Telegraph does not guarantee, warrant, or offer support for any such Non-Telegraph Products and Data; and (c) End User acknowledges that the providers of such Non-Telegraph Products and Data may have access to Input Data in connection with the interoperation of such Non-Telegraph Products and Data with the Telegraph Software, and Telegraph will not be responsible for any use, disclosure, modification, or deletion of such Input Data by such Providers.
3.4 Additional End User Responsibilities. End User will: (a) be responsible for its compliance with this Agreement; (b) be responsible for the accuracy, appropriateness, quality, and legality of Input Data, including any responses to validation or correction prompts from the Telegraph Software; (c) use commercially reasonable efforts to prevent unauthorized access to and use of the Telegraph Software, and promptly notify Telegraph of any such unauthorized access or use; and (d) use the Telegraph Software only in accordance with applicable laws and government regulations and this Agreement.
3.5 Usage Restrictions. End User will use the Telegraph Software and Documentation solely for its own internal business operations. End User may not, directly or indirectly: (a) make the Telegraph Software or Documentation available to, or use the Telegraph Software or Documentation for the benefit of, anyone other than End User; (b) upload, post, transmit, or otherwise make available to the Telegraph Software any content or material that End User does not have a right to make available under any applicable law or contractual relationship, that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person, or that is designed to interrupt, interfere with, destroy, or limit the functionality or use of the Telegraph Software or any technology or data connected therewith; (c) sublicense, resell, time share, or similarly exploit the Telegraph Software or Documentation; (d) modify, adapt, alter, translate, or create derivative works of the Telegraph Software or Documentation; (e) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Telegraph Software, or otherwise attempt to gain unauthorized access to the Telegraph Software or its related systems or networks; (f) access or use the Telegraph Software or Documentation to build a competitive product or service; or (g) otherwise access or use the Telegraph Software or Documentation except as expressly permitted by this Agreement.
3.6 Acceptable Use. End User must not purposely engage in any activity that may: (a) harass, threaten, impersonate, or abuse others; (b) degrade the performance of the Telegraph Software; (c) deprive authorized personnel access to the Telegraph Software; (d) use the Telegraph Software for personal financial gain; or (e) circumvent the Telegraph Software’s security measures.
3.7 Passwords, Credentials, and Security. End User will protect login credentials, use strong, secure passwords, and will not share login credentials with other end users. End User must immediately notify Telegraph of any security incidents or vulnerabilities. Such incidents include: (i) any potentially harmful event that may cause a failure, interruption, or loss in availability of the Telegraph Software; (ii) any potential loss, theft, or compromise of Telegraph information or data; (iii) any potential unauthorized access to the Telegraph Software; (iv) any damage or potentially unauthorized access to Telegraph equipment; (v) any potential violation to this or other applicable Telegraph policies, standards, or procedures.
4. Proprietary Rights and Licenses
4.1 Input Data. End User grants to Telegraph a perpetual, irrevocable, worldwide, non-exclusive, royalty-free and fully paid license to access, use, reproduce, prepare derivative works based upon, distribute, perform, and display the Input Data, and provide necessary access to third party service providers acting on Telegraph’s behalf, such as Telegraph’s hosting services provider, to provide the Telegraph Software to End User, to provide the Output Data to End User, and to otherwise perform Telegraph’s obligations and exercise its rights under this Agreement. End User will have access to the Input Data and will be responsible for all modifications or deletions they make to the Input Data. End User will have the ability to export Input Data from the Telegraph Software and End User agrees to make its own back-ups of the Input Data.
4.2 Output Data. Subject to the terms and conditions of this Agreement, Telegraph grants the End User a royalty-free, fully paid, non-exclusive, non-transferable, non-sublicensable license to use the Output Data solely for End User’s internal business purposes.
4.3 Analyses and Models. Notwithstanding anything herein to the contrary, End User acknowledges and agrees that Telegraph may collect, compile, analyze, derive, create, use, and exploit statistical analyses and other information and data related to the performance, operation, and use of the Telegraph Software (collectively “Analyses”), to develop, improve, and enhance the Telegraph Software and Telegraph’s artificial intelligence models and algorithms (“Models”), and for research and development purposes in connection with the Telegraph Software, Models, or other Telegraph offerings. Telegraph may use, disclose, license, distribute, and commercialize Models and Analyses in any manner, provided that such Models and Analyses do not specifically identify End User or include End User’s Confidential Information in an identifiable form.
4.4 Feedback. If End User provides Telegraph any feedback, suggestions, error corrections, or enhancement requests regarding the Telegraph Software, Documentation, Analyses, or Models (collectively, “Feedback”), then End User hereby irrevocably assigns to Telegraph all right, title, and interest, including all worldwide intellectual property rights, in and to such Feedback, and agrees to assist Telegraph in perfecting such rights at Telegraph’s expense.
4.5 Telegraph Property. Telegraph exclusively owns, all rights, title, and interest in and to the Telegraph Software, Documentation, Analyses, Models, Feedback, and the work product created by Telegraph in connection with its provision of the Telegraph Software and any related services, including all modifications, derivative works, improvements, upgrades, and updates to the foregoing, and all worldwide intellectual property rights associated with the foregoing (collectively, “Telegraph Property”). No rights are granted by Telegraph hereunder to any Telegraph Property other than as expressly set forth herein.
5. Confidentiality
5.1 Definition. “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including all copies thereof. Confidential Information of the End User includes the Input Data, and Confidential Information of Telegraph includes the Telegraph Property. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party free of any confidentiality obligations prior to its disclosure by the Disclosing Party; (c) is rightfully and lawfully received by the Receiving Party from a third party free of any confidentiality obligations; or (d) was independently developed by the Receiving Party without use of or reliance on any Confidential Information of the Disclosing Party.
5.2 Protection. The Receiving Party will: (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that the Receiving Party uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement; and (c) limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors, and agents who need such access for the Receiving Party’s performance of its obligations or exercise of its rights under this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, and upon termination or expiration of this Agreement, subject to the terms of this Agreement the Receiving Party will promptly return, or at the Disclosing Party’s option, permanently and securely erase and destroy, the Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prompt prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
6. Representations, Warranties, and Disclaimers
6.1 End User Warranty. End User warrants that it has obtained and will maintain all necessary consents, permissions, approvals, and licenses for End User and Telegraph to access, use, process, store, transfer and modify the Input Data, the Supported Environment, and any Non-Telegraph Products and Data enabled by the End User, including APIs and other connection or interoperation credentials, in connection with the access and use thereof with the Telegraph Software as contemplated by this Agreement. End User shall indemnify and hold Telegraph harmless from any claims arising from breach of this warranty.
6.2 Disclaimer. THE TELEGRAPH SOFTWARE AND ALL OTHER TELEGRAPH PROPERTY ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, AND TELEGRAPH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TELEGRAPH DOES NOT WARRANT THAT THE TELEGRAPH SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL PRODUCE CORRECT OR RELIABLE RESULTS. ALL OUTPUT DATA IS PROVIDED “AS IS” AND TELEGRAPH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS RESULTING FROM INCORRECT, INCOMPLETE OR DEFECTIVE INPUT DATA.
7. Indemnification
End User will indemnify, defend and hold harmless Telegraph and its officers, directors, employees, agents, successors and assigns from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs of investigation), arising from or relating to any claim, demand, action or proceeding brought against it by any third party (i) alleging that any Input Data or Non-Telegraph Products and Data used by End User in conjunction with the Telegraph Software infringes, misappropriates, or otherwise violates such third party’s rights, including intellectual property rights, (ii) arising from End User’s breach of this Agreement, or (iii) arising from End User’s use of the Telegraph Software in violation of applicable law. End User may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Telegraph will not have any liability to End User or to any other party for any lost profits, loss of use, loss of data, or lost revenues, or for any direct, indirect, special, incidental, consequential, cover, or punitive damages, whether or not Telegraph has been advised of the possibility of such damages. In no event will Telegraph have any liability arising from or relating to this Agreement. Telegraph expressly disclaims any and all liability to End User with respect to the Telegraph Software, Documentation, or other Telegraph acts or omissions in connection with this Agreement. For the avoidance of doubt, the exclusions and limitations set forth in this Section titled “Limitation of Liability” will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that such exclusions and limitations allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
9. Suspension and Termination
Telegraph may, in its sole discretion and without liability to End User, suspend or terminate End User’s right to access and use the Telegraph Software if: (a) End User is using the Telegraph Software in violation of this Agreement or any applicable law; (b) End User’s accounts have been compromised or unlawfully accessed; (c) suspension of the Telegraph Software is necessary, in Telegraph’s reasonable discretion, to protect the security of the Telegraph Software or the infrastructure of Telegraph; (d) suspension is required by applicable law; or (e) any fees owed for the Telegraph Software are thirty (30) days or more overdue (whether or not End User or a third party is responsible for payment of such fees).
10. General Provisions
10.1 Force Majeure. Telegraph will not be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, internet outages, and judicial or government action.
10.2 Assignment. Telegraph may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of End User. End User may not assign, delegate or transfer this Agreement or any of its rights or obligations hereunder without Telegraph’s prior written consent. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
10.3 Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Illinois, without regard to any conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Cook County, Illinois, will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. End User hereby consents to the exclusive jurisdiction of such courts. End User hereby irrevocably waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. End User further agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
10.4 Notices. All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the latest Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
10.5 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
10.6 No Waiver. No failure or delay by Telegraph in exercising any right under this Agreement will constitute a waiver of that right.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
10.8 Entire Agreement. This Agreement, including any addenda hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter herein. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by Telegraph. Telegraph reserves the right to update this Agreement from time to time by posting an updated version on its website and providing notice to End User.
10.9 Survival. The Sections titled “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Payment Obligations,” “Data Rights,” and “General Provisions,” and any other provisions which by their nature should survive, will survive any termination or expiration of this Agreement.