Poly API Corporation
Last Updated: October
Subscription Agreement
THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE POLY API CORPORATION (“POLY”) PRODUCTS. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT. POLY AND CUSTOMER ARE HEREINAFTER REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE POLY PRODUCTS.
This Agreement was last updated on October 1, 2024. It is effective between You and Poly as of the date You accepted this Agreement (the “Effective Date”). All section headings used herein are for convenience only and shall not be used to interpret any section of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1 “Administrator” is an individual who has been granted administrative permissions by Customer to the Service in order to set-up, modify and suspend the Service, each as applicable.
1.2“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “API” means an application programming interface.
1.4 “Authorized Users” means any Administrator and individuals who are authorized by Customer to use the Products including, but not limited to, employees, consultants, contractors and agents of Customer.
1.5 “Confidential Information” is as defined in Section 4 (Confidentiality).
1.6 “Customer” shall include the entity listed in the preamble to this Agreement and any Affiliate of Customer that may execute an Order Form under this Agreement. For purposes of clarity, Customer and its Affiliates may execute Order Forms under this Agreement. When an Affiliate of the Customer identified above signs an Order Form under this Agreement, the Affiliate shall be considered the Customer for purposes of such Order Form and shall be bound by the terms and conditions of this Agreement.
1.7 “Documentation” means Poly’s then current on-line user’s manuals made generally available by Poly and provided to Customer along with the Software.
1.8 “Fees” is as defined in Section 3.1 (Fees).
1.9 “Installation Services” means those installation services provided by Poly to Customer as set forth in an Order Form.
1.10 “Intellectual Property Rights” shall mean all existing and future worldwide copyrights (including, without limitation, rights in audiovisual works and moral rights), trademarks, service marks, trade names, patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), inventions (whether patentable or not), trade secrets, know-how, Confidential Information and any other proprietary information whether arising under the laws of the United States, or any other country, state or jurisdiction.
1.11 “License Key” means a key provided to Customer by Poly that is used to set up the functionality and permitted scope of use of the Products in accordance with the terms of this Agreement and any applicable Order Form.
1.12 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.13 “Order Form” means any ordering document for Customer’s purchases from Poly that is executed hereunder by both Parties from time to time. Each Order Form that has been signed by authorized representatives of each Party incorporates this Agreement by reference. An Order Form may or may not be required for download, access and/or use of the Products.
1.14 “Products” means the Software, Service, Trial Products (defined in Section 11.1), Beta Versions (defined in Section 11.1) and SDKs.
1.15 “SDK” means the software development tools, including, but not limited to, sample code, documentation and APIs, made available to Customer when the Products are downloaded or accessed.
1.16 “Service” means web-based or mobile applications provided by Poly that are identified on an Order Form or otherwise made available to Customer, including associated offline components.
1.17 “Software” means the Poly programs identified on an Order Form or otherwise downloaded and/or installed by Customer and any other Poly software made available in connection with the Products.
1.18 “Support Services” means those maintenance and support services that Customer obtains from Poly set forth in Section 2.8(d) (Support for Products).
1.19 “Term” is as defined in Section 10.1 (Term of Agreement).
1.20 “Training Services” means those training services provided by Poly to Customer as set forth in an Order Form.
1.21 “User Content” is as defined in Section 6 (User Content).
2. Provision and Use of the Products.
2.1 Poly Service Overview. This Agreement is designed for those Customers of Poly that purchase Poly’s subscription model that allows Customer to use the Products to streamline their API discovery and consumption process by discovering known company-wide APIs and consuming them as functions, creating new integration or orchestration logic as new functions, and teach the Products new APIs and events that are not already integrated into the development environment.
2.2 Order Forms. Customer and its Affiliates may place orders under this Agreement by signing Order Form(s).
2.3 Provision of Service. Subject to the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, Poly shall make the Service available to Customer and its Authorized Users pursuant and subject to this Agreement and any Order Forms during the Term. Customer agrees that its purchase of the Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Poly with respect to future functionality or features. Poly may modify the Service in order to comply with applicable law, rule, or regulation.
2.4 Software License Grant. Subject to the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, Poly hereby grants Customer, during the Term, a limited, non-exclusive, non-sublicensable, non-transferable license to install the Software, in machine-readable form only, and to use the Software solely for Customer’s business use, all in accordance with this Agreement, any related Order Form (including any additional requirements and/or restrictions as set forth in such Order Form) and the applicable Documentation.
2.5 Accounts and Registration. To access some features of the Products, Customer may have to register for an account and may be required to provide Poly with information such as name, email address, address, or other contact information. Customer agrees that the information provided to Poly is accurate, complete, and not misleading, and that Customer will keep it accurate and up to date at all times. When registering, Customer may be asked to create a password and may be issued License Keys. Customer is solely responsible for maintaining the confidentiality of its account, password, and License Keys, and Customer accepts responsibility for all activities that occur under its account. If Customer believes that its account is no longer secure, then Customer should immediately notify Poly at support@polyapi.io. Customer represents and warrants that it is not (and no employee, contractor, or agent of Customer is) creating additional accounts for the purposes of circumventing usage limitations or other restrictions in this Agreement.
2.6 Authorized Users. Customer is responsible and liable for all activities that occur in any Authorized Users’ accounts and for compliance with this Agreement by any such Authorized Users. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any Authorized User, Customer will immediately notify Poly and work with Poly to immediately terminate access of such Authorized User to the Products.
2.7 Use Guidelines; Restrictions. Customer shall (a) use the Products solely for its business purposes of creating and operating integrations, orchestrations and new microservices, in each case in accordance with this Agreement and any related Order Form (including any additional requirements and/or restrictions as set forth in such Order Form), (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notify Poly promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Products. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, host, operate as a service bureau or managed service, or otherwise commercially exploit or make the Products available to any third party, other than to Authorized Users or as otherwise contemplated by this Agreement; (ii) modify, copy, adapt, alter, translate or create derivative works of the Products; (iii) frame or mirror any content forming part of the Products, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iv) interfere with security-related features of the Products, including by disabling or circumventing features that prevent or limit use, printing or copying of any content; (v) interfere with or disrupt the integrity or performance of the Products or the data contained therein or any user’s enjoyment of the Products, including by: (A) uploading or otherwise disseminating any Malicious Code; (B) making any unsolicited offer or advertisement to another user of the Products; (C) collecting personal information about another user or third party without consent; or (D) interfering with or disrupting any network, equipment, or server connected to or used to provide the Products; (vi) attempt to gain unauthorized access to the Products or its related systems or networks or use the Products in connection with the creation or distribution of code that is designed to disrupt, damage, or gain unauthorized access to a computer system; (vii) reverse engineer, decompile or disassemble the Products (or otherwise attempt to derive the source code for the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation); (viii) access, search, or otherwise use any portion of the Products through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Poly; (ix) knowingly take any action that would cause the Products (including a License Key) to be placed in the public domain; (x) remove, alter, or obscure any proprietary notices of Poly, its licensors or supplier included in the Products; (xi) violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (xii) use the Products to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights, or otherwise harass, threaten, demean, embarrass, bully, or otherwise harm any individual; (xiii) harvest or scrape of any content of the Products or any related system or service; (xiv) access the Products in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Products; (xv) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission; (xvi) use the Products in a way that violates the Usage Policies of OpenAI (available at https://openai.com/policies/usage-policies); (xvii) mining any cryptocurrency or other activities involving “proof-of work”, or any similar activities; (xviii) use the Products for any illegal purpose or in violation of any local, state, national, or international law; or (xix) attempt to do any of the acts described in this Section 2.7 (Use Guidelines; Restrictions) or assist or permit any person (including any Authorized User) in engaging in any of the acts described in this Section 2.7 (Use Guidelines; Restrictions).
2.8 Delivery, Installation and Acceptance of the Software; Installation of the Service; Training Services; Support Services
(a) Delivery, Installation and Acceptance of the Software. The Software will be delivered to Customer by electronic download (and may require issuance of a License Key), unless otherwise agreed to by the parties. Customer will be solely responsible for installing any Software as permitted under this Agreement unless (i) Customer purchases Installation Services pursuant to an Order Form, or (ii) Customer requires nonstandard services (e.g. customization services) for its installation in which case the parties shall execute a separate professional services agreement. All Software will be deemed accepted upon delivery.
(b) Installation of the Service. In the event that Customer requires any administration and/or installation services with respect to the Service, any such services and related fees shall be included in an Order Form executed by the parties and such services shall be provided by Poly without the need for a separate professional services agreement unless otherwise agreed to by the parties.
(c) Training Services. Customer may purchase Poly’s Training Services. Any such purchase shall be specified on an Order Form.
(d) Support for Products. Poly will provide those Support Services for the Products in accordance with Poly’s then current support policy (the “Support Policy”).
2.9 Suspension of Products. Poly reserves the right to suspend Customer’s or any Authorized User’s access to or use of the Products if: (a) Customer is delinquent on any payment obligations for more than thirty (30) days; (b) Poly reasonably believes that suspension of the Products is necessary to comply with the law or requests of governmental entities; (c) Poly determines that Customer’s use of the Products in violation of this Agreement, or the transmission of any of Customer’s User Content, poses any security or vulnerability risk to Poly or the Products; or (d) Customer’s use of the Products in violation of this Agreement may subject Poly or any third party to any liability to a third party. If Poly suspends Customer’s right to access or use any portion or all of the Products, Customer remains responsible for all fees and charges Customer has incurred through the date of suspension, and during such suspension if suspended pursuant to clause (a), (c) or (d) above. Poly’s right to suspend Customer’s or any Authorized User’s access to or use of the Products is in addition to Poly’s right to terminate this Agreement under Section 10 (Term & Termination).
2.10 Audit of Software Usage. Poly will have the right, upon reasonable prior written notice to Customer, at a mutually agreeable time, and no more than once in any twelve (12) month period, to have an independent audit firm selected by Poly audit Customer’s equipment on which the Software are installed, and all related back-up files, to verify compliance with this Agreement. Any such audit will be conducted during normal business hours in a manner so as not to unreasonably interfere with Customer’s normal operations. The audit will be conducted at Poly’s expense, unless the audit reveals that Customer has failed to pay Fees consistent with its use of the Software, in which case Customer will reimburse Poly for all reasonable costs and expenses incurred by Poly in connection with such audit, together with any applicable Fees.
3. Fees & Payment
3.1 Fees. Customer shall pay all fees specified in any Order Forms hereunder or as otherwise specified during the registration process (the “Fees”). Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form, fees are based on the Products purchased and not actual usage, payment obligations are non-cancelable, and fees paid are non-refundable. In the event that Customer is purchasing a subscription based on usage and Customer’s actual usage exceeds the amount purchased by Customer, the overage charges outlined in the Order Form will apply and Poly will invoice Customer for such overage charges as incurred or as otherwise stated in an Order Form.
3.2 Invoicing & Payment. If available, Customer may elect to pay Fees upfront during the registration process. All other Fees (including if Customer chooses during the registration process to be invoiced) will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in an Order Form, charges are due net thirty (30) days after receipt of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information.
3.3 Late Payment. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (a) Poly may charge interest on the 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; and (b) Customer shall reimburse Poly for all costs incurred by Poly in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
3.4 Taxes. Poly’s invoices shall include any applicable direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, above and beyond the Fees, excluding taxes based on Poly’s net income or property, unless Customer provides Poly with a valid tax exemption certificate authorized by the appropriate taxing authority. Unless otherwise stated, all prices set forth on an Order Form are exclusive of Taxes.
4. Confidentiality.
4.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed or made available 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 and the circumstances of disclosure, including the terms and conditions of this Agreement, the Products, pricing, business and marketing plans, business processes and other business information, technology and technical information, financial results and information, product designs, product roadmaps, results of penetration testing, security reports or audits, support information, customer and vendor related data, trade secrets, strategies, techniques, drawings, specifications, research and development, ideas, inventions, know-how data, and patent disclosures. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2 Confidentiality. Each Receiving Party agrees to: (a) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of the Disclosing Party’s Confidential Information as it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care; and (b) hold the Disclosing Party’s Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge the Disclosing Party’s Confidential Information to any third party, except as set forth herein or to those Receiving Party employees, contractors, and agents who: (i) have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder; and (ii) are obligated to comply with use and non-disclosure provisions no less restrictive than those set forth in this Agreement.
4.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Poly reserves all rights, title and interest in and to the Products (and any enhancements, modifications, or derivative works thereof), including all related Intellectual Property Rights. The visual interfaces, graphics, design, compilation, APIs, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Products provided by Poly (“Materials”) are protected by intellectual property and other laws. All Materials included in the Products are the property of Poly or its third-party licensors. Except as expressly authorized under this Agreement, Customer (and its Authorized Users) may not make use of the Materials. No rights or implied licenses are granted to Customer hereunder other than as expressly set forth herein.
5.2 Feedback and Suggestions. If Customer or its Authorized Users provide an any suggestions, enhancement requests, problems with or proposed modifications or improvements to the Products, recommendations or other feedback relating to Poly or the Products (“Feedback”), Poly shall have an unrestricted, fully-paid, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to exploit the Feedback in any manner and for any purpose, including to improve the Products and create other products and services. Poly has no obligation to provide Customer with attribution for any Feedback provided.
6. User Content.
6.1 User Content Generally. Certain features of the Products may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Upload”) content to the Products, including folders, data, text, code, and any other works of authorship or other works (“User Content”). Customer may only use the storage functionality of the Products to store custom function code (compiled or uncompiled), variable values, dependencies, and related configuration and meta-data, as necessary to execute Customer code on the Products (per the Documentation). Any other use, including but not limited to, using the Products for the purpose of hosting generally accessible content for download or storage, is not permitted, and may result in Poly deleting Customer’s User Content or suspending Customer’s access to the Products. Customer retains any copyright and other proprietary rights that Customer may hold in the User Content that Customer Uploads to the Products, subject to the licenses granted in this Agreement. Customer agrees to pay all monies owing to any person or entity that may resulting from Uploading User Content and from Poly’s exercise of the license rights set forth in this Section.
6.2 Public and Private Content. By default, User Content will be privately accessible and viewable only by Customer (“Private Content”), but Customer may, through the available functionality of the Products, mark any or all of Customer’s User Content as publicly accessible and available to other users of the Products (“Public Content”).
6.3 License Grant to Private Content. By Uploading Private Content to or via the Products, Customer hereby grants Poly a worldwide, non-exclusive, royalty-free, fully paid right and license during the Term to access, use, process, transmit, host, store, reproduce, and modify Customer’s Private Content, in whole or in part, in each case solely in connection with the provision, operation, maintenance, support and improvement of the Products for the benefit of Customer.
6.4 License Grant to Public Content. By Uploading Public Content to or via the Products, Customer (a) hereby grants Poly a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to access, collect, retain, use, process, transmit, disseminate, disclose, host, store, transfer, publicly display, publicly perform, communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in this Agreement, distribute, and otherwise exploit Customer’s Public Content, in whole or in part, in each case solely in connection with the provision, operation, maintenance and improvement of the Products and (b) acknowledges that such User Content will be accessible to and may be used by other users of the Products. Poly will use commercially reasonable efforts to design the Products so that they will permit Customer to protect from public disclosure to other users of the Products Customer’s Public Content consisting of the data used to train API functions or the source code of any custom client or server functions.
6.5 User Content Representations and Warranties. Customer must not Upload User Content if Customer is not the owner of or is not fully authorized to grant rights in all of the elements of that User Content. POLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USER CONTENT. CUSTOMER IS SOLELY RESPONSIBLE FOR CUSTOMER’S USER CONTENT AND THE CONSEQUENCES OF PROVIDING USER CONTENT VIA THE PRODUCTS. By providing User Content via the Products, Customer affirms, represents, and warrants that:
(a) Customer is the creator and owner of the User Content, or has the necessary licenses, rights, consents, and permissions to authorize Poly and users of the Products to use and distribute Customer’s User Content as necessary to exercise the licenses granted by Customer in this Section, in the manner contemplated by Poly, the Products, and this Agreement;
(b) Customer’s User Content, and the Uploading or other use of Customer’s User Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Poly to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties;
(c) Customer’s User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, violent, or otherwise inappropriate; and
(d) Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer’s User Content.
Customer is responsible for maintaining licenses and adhering to the license terms of any software Customer adapts, runs, copies, or distributes. If Poly reasonably believes any of Customer’s User Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates a material term of this Agreement, Poly will notify Customer of the prohibited User Content and may request that such content be removed from the Products or access to it be disabled. If Customer does not remove or disable access to the prohibited User Content within two business days of Poly’s notice, Poly may remove or disable access to the prohibited User Content and/or suspend Customer’s access to the Products, either in whole or in part. Notwithstanding the foregoing, Poly may remove or disable access to any prohibited User Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Products, or in accordance with applicable law or any judicial, regulatory. or other governmental order or request. In the event that Poly removes Customer’s User Content without prior notice, Poly will provide prompt notice to Customer unless prohibited by applicable law.
6.6 Protected Health Information; Nonpublic Personal Information. Customer represents and warrants that it will not transmit or expose to Poly any (a) protected health information (as that term is used in HIPAA), (b) nonpublic personal information (as that term is used in the Gramm-Leach-Bliley Act), (c) payment card data (as regulated by the Payment Card Industry Security Standards Council) or (d) personal information or data (as such terms are used in state breach notification laws or European Union privacy directives or other similar legislation) as a part of using the Products, in connection with any support activities, or otherwise under this Agreement.
6.7 User Content Disclaimer. POLY IS UNDER NO OBLIGATION TO EDIT OR CONTROL USER CONTENT THAT CUSTOMER OR OTHER USERS UPLOAD AND WILL NOT BE IN ANY WAY RESPONSIBLE OR LIABLE FOR USER CONTENT. Poly may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in Poly’s sole judgment violates this Agreement, is alleged to violate law or the rights of third parties, or is otherwise objectionable. Customer understands that, when using the Products, Customer will be exposed to User Content from a variety of sources and acknowledges that User Content may be inaccurate, offensive, indecent, or objectionable. Customer agrees to waive, and hereby does waive, any legal or equitable right or remedy Customer has or may have against Poly with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, Poly may investigate the allegation and determine in Poly’s sole discretion whether to remove the User Content, which Poly reserves the right to do at any time and without notice. For clarity, Poly does not permit infringing activities on or through the Products.
6.8 Monitoring Content. Poly does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Products by its users. Customer acknowledges and agrees that Poly reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Products for operational and other purposes. Regardless of whether Poly chooses to monitor the content, Poly assumes no responsibility or liability for content, or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used. Poly may block, filter, remove, or disable access to any User Content uploaded to or transmitted through the Products without any liability to the user who Uploaded such User Content to the Products or to any other users of the Products.
6.9 Retention. Subject to the restrictions on User Content contained in this Agreement, Poly may (but is under no obligation to) delete any of Customer’s User Content: (a) upon 30 days’ notice to Customer if such User Content has not been accessed, modified, or run for more than 60 days, or (b) immediately if Customer’s access to the Products terminates or expires for any reason.
7. Warranties & Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Poly represents and warrants that it will provide the Products in a manner consistent with general industry standards reasonably applicable to the provision thereof.
7.2 Disclaimers. THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES & DISCLAIMERS) ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS. POLY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PRODUCTS, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. POLY DOES NOT WARRANT THAT THE PRODUCTS OR ANY PORTION OF THE PRODUCTS, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PRODUCTS, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND POLY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE PRODUCTS OR POLY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PRODUCTS WILL CREATE ANY WARRANTY REGARDING ANY OF THE POLY ENTITIES OR THE PRODUCTS THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER AGREES THAT ITS USE OF THE PRODUCTS IS AT ITS OWN DISCRETION AND RISK, AND THAT POLY IS NOT RESPONSIBLE FOR ANY PROPERTY DAMAGE (INCLUDING TO THE COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 7.2 (DISCLAIMERS) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Poly does not disclaim any warranty or other right that Poly is prohibited from disclaiming under applicable law.
8. Indemnification.
8.1 Indemnification by Poly. Subject to the terms of the Agreement, Poly will defend at its own expense any action against Customer brought by a third party alleging that the Products, in each case, as delivered, infringe any U.S. patents or any copyrights or misappropriate any trade secrets, in each case, of a third party, and Poly will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer: (a) notifying Poly promptly in writing of such action; (b) giving Poly sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Poly’s request and expense, assisting in such defense. If the Products become, or in Poly’s opinion are likely to become, the subject of an infringement claim, Poly may, at its option and expense, either: (i) procure for Customer the right to continue using the Products; (ii) replace or modify the Products so that they become non-infringing; or (iii) terminate this Agreement and refund Customer any unused, prepaid fees for the infringing Products covering the remainder of the subscription term after the date of termination. Notwithstanding the foregoing, Poly will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon: (A) any use of the Products not in accordance with this Agreement; (B) any use of the Products in combination with products, equipment, software, or data not supplied or approved in writing by Poly if such infringement would have been avoided but for the combination with other products, equipment, software or data; (C) any use of a prior release of the Products after a more current release has been made available to Customer; or (D) any modification of the Products by any person other than Poly or its authorized agents or subcontractors or as approved in writing by Poly. This Section 8.1 states Poly’s entire liability and the Customer’s exclusive remedy for any claims of infringement.
8.2 Indemnification by Customer. To the fullest extent permitted by law, Customer is responsible for its, and its Authorized Users’, use of the Products, and Customer will defend at its own expense any action against Poly, its Affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Poly Entities”) brought by a third party (including any Authorized User) alleging that (a) Customer’s User Content, (b) Poly’s possession or use of Customer’s User Content, (c) Customer’s provision to Poly of any of the information referred to in Section 6.6 (Protected Health Information; Nonpublic Personal Information) above, (d) Customer’s (or an Authorized User’s) use of the Products in violation of this Agreement, or (e) any action by Customer referred to in clauses (A)-(D) of Section 8.1 (Indemnification by Poly) above, infringes, violates, or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party, and Customer will pay those costs and damages finally awarded against the Poly Entities in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Poly: (i) notifying Customer promptly in writing of such action; (ii) giving Customer sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at Customer’s request and expense, assisting in such defense.
9. Limitation of Liability.
9.1 Limitation of Liability. POLY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $50,000 OR THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL POLY HAVE ANY LIABILITY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, OR (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues for as long as Customer is legally permitted by Poly to use the Products, as evidenced by the subscription term set forth in any related Order Form (and any subsequent Order Forms) or as otherwise agreed to by Poly in writing (the “Term”).
10.2 Termination for Cause. Either party may terminate this Agreement for cause: (a) upon thirty (30) days written notice of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Poly may also terminate this Agreement for cause if any act or omission by Customer or any Authorized User results in a suspension described in Section 3.5 (Suspension of Products). Upon any termination for cause by Customer, Poly shall refund Customer any unused, prepaid fees covering the remainder of the subscription term after the date of termination.
10.3 Termination for Change in Law. In the event that any law or regulation enacted, promulgated or amended after the date of the Agreement or any interpretation of law or regulation by a court or regulatory authority of competent jurisdiction after the date of the Agreement (collectively “Change in Law”) renders any provision of the Agreement illegal or unenforceable or materially affects the ability of Poly to perform its obligations under the Agreement, then Poly may request renegotiation of the applicable terms of the Agreement by written notice to Customer. Both Parties agree to negotiate in good faith an amendment that preserves the original reasonable expectation of the Parties to the extent possible in a manner consistent with the Change in Law. If no such amendment can be agreed upon in the reasonable opinion of either Party within 60 days of receipt of such notice, then Poly may terminate the Agreement upon an additional 30 days written notice.
10.4 Effects of Termination. Upon expiration or termination of this Agreement: (a) all rights to use the Products (including all licensed rights for the Software) granted in this Agreement will immediately cease to exist; (b) Customer must promptly discontinue all use of the Products and related Confidential Information, erase all copies of the Products and related Confidential Information from Customer’s computers whether or not modified or merged into other materials, and return to Poly, or at Poly’s request, destroy, all copies of the Products and related Confidential Information in Customer’s possession or control and certify in writing to Poly that Customer has fully complied with these requirements; and (c) Poly must promptly discontinue all use of Customer’s Confidential Information, erase all copies of the Customer’s Confidential Information from Poly’s computers whether or not modified or merged into other materials, and return to Customer, or at Customer’s request, destroy, all copies of Customer’s Confidential Information in Poly’s possession or control and certify in writing to Customer that Poly has fully complied with these requirements.
10.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Poly prior to the effective date of termination. If this Agreement is terminated by Poly for cause, Customer shall remain responsible for any payments set forth on any outstanding Order Forms, regardless of whether such amounts have been invoiced or are payable at the time of such termination.
10.6 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1 (Definitions), 2.7 (Use Guidelines; Restrictions), 3 (Fees & Payment), 4 (Confidentiality), 5 (Proprietary Rights), 6.5 (User Content Representations and Warranties), 6.7 (User Content Disclaimer), 7.3 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (Term & Termination), 11.3 (Disclaimers & Limitations), 12 (Third-Party Terms; Open Source) and 13 (General Provisions).
11. Trial Products, Beta Versions, and SDKs.
11.1 Trial Products & Beta Versions. If Poly provides Customer with a free, trial, evaluation or developer license to the Products (the “Trial Products”) or a beta, preview or other pre-release Products or features (the “Beta Versions”), Customer agrees to use the Trial Products and Beta Versions (a) solely for internal evaluation purposes, (b) in accordance with the use guidelines and restrictions set forth in Section 2.7 (Use Guidelines; Restrictions), and (c) for the period designated in the Order Form or otherwise agreed to in writing by Poly (the “Trial Period”). Any use of the Trial Products and/or Beta Versions during a Trial Period is limited solely to non-production use. At the end of the Trial Period, Customer’s right to use the Trial Products and/or Beta Versions automatically expires and Customer agrees to uninstall the Trial Products and Beta Versions and return to Poly all copies or partial copies of the Trial Products and Beta Versions or certify to Poly in writing that all copies or partial copies of the Trial Products and/or Beta Versions have been deleted from Customer’s computer libraries and/or storage devices and destroyed. If Customer desires to continue its use of the Trial Products and/or Beta Versions beyond the Trial Period, Customer may contact Poly to acquire a license to such Trial Products and/or Beta Versions for the applicable fee.
11.2 SDK License. The terms and conditions of this paragraph apply to Customer’s use of SDKs. Customer is provided a license to the SDK solely for Customer’s internal use to develop products that enable integration with the Products. In addition to the use guidelines and restrictions set forth in Section 2.7 (Use Guidelines; Restrictions), Customer may not reproduce, disclose, market or distribute the SDK or any applications containing any executable versions of the SDK to third parties or over the internet, or use such executables in excess of any restrictions that may be contained in an Order Form. The license to the SDK shall expire when Customer’s license to the underlying Products (or Trial Products) expires.
11.3 Disclaimers & Limitations. ANY TRIAL PRODUCTS, BETA VERSIONS AND SDKS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. POLY DISCLAIMS ANY AND ALL LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS, BETA VERSIONS OR SDKS. Poly does not provide support for Trial Products, Beta Versions or SDKs. Trial Products, Beta Versions and SDKs may be subject to reduced or different security, compliance and privacy commitments. The following Sections of this Agreement shall not apply to Trial Products, Beta Versions or SDKs: 2.8(d) (Support for the Products), 7.1 (Warranties), 7.2 (Performance Warranty for the Software), 8.1 (Indemnification by Poly) and 9.1 (Limitation of Liability). POLY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO ANY USE OF TRIAL PRODUCTS, BETA VERSIONS AND/OR SDKS SHALL NOT EXCEED $50.00.
12. Third-Party Terms; Open Source.
12.1 Third-Party Services and Linked Websites. The Products may be used by Customer to interface with certain third-party services and applications (“Third-Party Services”). Poly may also provide tools through the Products that enable Customer to export information, including User Content, to Third-Party Services. This includes certain functionality leveraging tools provided by OpenAI, L.L.C. (“OpenAI”), WHICH ARE ENABLED BY DEFAULT. By using one of these tools (or by failing to disable Product functionality leveraging OpenAI’s tools) Customer hereby authorizes Poly to transfer that information to the applicable Third-Party Service(s). THIRD-PARTY SERVICES ARE NOT UNDER POLY’S CONTROL, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, (A) POLY MAKES NO WARRANTY REGARDING THE OPERATION OR FUNCTIONALITY OF SUCH THIRD-PARTY SERVICES, (B) POLY IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SERVICE’S USE OF CUSTOMER’S EXPORTED INFORMATION, (C) POLY DOES NOT GUARANTEE THAT THE PRODUCTS WILL INTEROPERATE WITH ANY PARTICULAR THIRD-PARTY SERVICE AND (D) POLY’S SUPPORT OBLIGATIONS SET FORTH IN SECTION 2.8(d) (SUPPORT FOR THE PRODUCTS) SHALL NOT EXTEND TO ANY THIRD-PARTY SERVICES. Customer is responsible for reviewing the terms of use and privacy policy of any Third-Party Services before sharing any User Content or information with such Third-Party Services. Once sharing occurs, Poly has no control over the information that has been shared, and Poly will not be able to remove such information from third-party servers. The Service may also contain links to third-party websites (“Linked Websites”). Linked Websites are not under Poly’s control, and Poly is not responsible for their content.
12.2 Open Source Software. Certain items of software included with the Products are subject to the “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Nothing in this document limits Customer’s rights under the terms and conditions of any applicable end user license for the Open Source Software.
13. General Provisions.
13.1 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
13.2 No Third-Party Beneficiaries. Nothing in this Agreement shall convey any rights upon any person or entity which is not a Party or a successor or permitted assignee of a Party to this Agreement, including any Authorized User or third-party service provider.
13.3 Notices. All notices under this Agreement shall be in writing and shall be sent by electronic mail. Notices shall be deemed to have been given upon the second business day after sending by email. Notices to Poly shall be sent to notices@polyapi.io. Notices to Customer, unless otherwise indicated by Customer, may be sent to the individual that executed this Agreement on behalf of Customer and/or an Administrator and/or to the electronic mail address on record in Poly’s account records.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the provision shall 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 shall remain in force and effect.
13.6 Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Products) to any third party without Poly’s prior written consent, which consent may not be unreasonably withheld. Poly shall have the right to assign its rights or obligations under this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise without Customer’s consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of Poly and Customer.
13.7 Governing Law. The laws of the State of Delaware, United States of America (without reference or giving effect to any conflict of laws principles that would require the application of the laws of any other jurisdiction) govern this Agreement and all matters arising out of or relating to this Agreement, including, without limitation, validity, interpretation, construction, performance, and enforcement. Any dispute, action, claim or cause of action arising out of, relating to, or in connection with this Agreement or the Products shall be only brought in and is subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, United States of America. Each party waives, to the fullest extent of the law, any objection to venue in such courts, and each party hereby irrevocably submits and consents to the exclusive jurisdiction of such courts.
13.8 U.S. Government End Users. If Customer is a branch or agency of the United States Government (the “Government”), the following provision applies. The Products are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualify as “commercial items” as defined in 48 C.F.R. 2.101. Both the Products and any associated documentation are provided to the Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The Government shall acquire the Products and any associated documentation with only those rights set forth in this Agreement, and any use of the Products and any associated documentation by the Government constitutes agreement by the Government that that the Products and any associated documentation are “commercial computer software” and “commercial computer software documentation” as defined in this paragraph and constitutes acceptance of the rights and restrictions herein.
13.9 Modifications. Poly reserves the right to alter the terms of this Agreement at any time. Customer agrees to review the latest version of the Agreement on Poly’s website periodically to remain aware of any modifications to the Agreement about which Customer is not alerted by Poly. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of the Products after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Agreement shall be to cease Customer’s use of the Products and to comply with Customer’s termination obligations outlined in Section 10 of this Agreement. If any provision of the Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect.
13.10 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the final agreement between the Parties, and is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous agreements (including any click-through agreement associated with the Products, other than as set forth below), proposals or representations, written or oral, concerning the subject matter contained in this Agreement, are expressly merged into and superseded by this Agreement (for purposes of clarity, in the event that Customer has executed a separate agreement with Poly for any other Poly product or service not contemplated herein, such agreement is not merged into or superseded by this Agreement). In the event that (a) Poly requires a separate click-through agreement to access certain features or functionality of its products that contains unique terms not addressed here or (b) an Authorized User accepts a click-through agreement in connection with their download of or registration for certain products (such as a mobile application to be installed on a mobile device of such Authorized User), such agreements shall not be superseded by this Agreement. In entering this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and an Order Form, the terms and conditions set forth in the Order Form shall govern but only with respect to the Products purchased pursuant to such Order Form. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.