END-USER LICENSE AGREEMENT Nov 2023

END-USER LICENSE AGREEMENT

Last Updated: Nov 3, 2023 (see previous versions).

Sections:

  1. Definitions
  2. Confidential Information
  3. User Content
  4. User Requirements
  5. Responsive Intellectual Property Rights
  6. User Usage and Restrictions
  7. Account management; Updates; Suspension of Access
  8. Term and Termination of Access
  9. Disclaimers; Limitation of Liability; Indemnification
  10. Jurisdiction/Governing laws
  11. Miscellaneous/Other terms

Thank you for choosing us to be your Response Management Solution—Responsive’s products, services and  website (the “Services”). This End User License Agreement (this “EULA”) contains the terms  under which RFPIO, Inc. d/b/a Responsive (“Responsive”, “we”, “us” and/or “our”) and its affiliates provide their Services to  its Service visitors (“you”, “your”) and describe how the Services may be accessed and used.

1. DEFINITIONS 

Confidential Information” means the information of a Party (the “Disclosing Party”) that the  other Party (the “Receiving Party”) receives in connection with the provision or receipt of the  Services and which is proprietary to or confidential to the Disclosing Party including, without  limitation, information relating to the Disclosing Party’s business, marketing plans, financial affairs  and product development efforts, patents, patent applications, research, product plans, products,  developments, inventions, processes, designs, drawings, engineering, formulae, markets,  software (including source and object code), hardware configuration, computer programs,  algorithms, business plans, agreements with third parties, services, strategy, trade secrets, know how, technical information, specifications, past, present and future operations, partner, client, and  supplier identities, and other non-public information, whether tangible, intangible, visual,  electronic or otherwise, together with notes, analysis, compilations, projections, and/or other  documents prepared by either party, their directors, officers, employees, agents and  representatives, based upon, containing or otherwise reflecting such information.

Documentation” means the applicable training materials, user guides, publicly available  marketing and/or proposal materials, and other similar information, or other documents  disseminated under or governed by confidentiality obligations that pertain to the Software or Services provided by Responsive, which may be updated by Responsive at any time without notice to  include information about new features and incorporate feedback to help Responsive’s customers  understand how to use the Software and Services.

“Generative AI Technologies” means artificial intelligence technology that can generate high-quality texts, images, and other content based on the data they were trained on. In the context of Responsive’s use of the technology, this specifically refers to large language AI models (for example, GPT) to comprehend and produce text-based content.

Personal Information” means any information relating to natural persons who can be identified  or who are identifiable, directly from the information in question; or who can be indirectly identified  from that information in combination with other information or as may otherwise be specified in  applicable privacy laws. For example: names, email addresses, and inferences from other  personal information that could create a profile about your preferences and characteristics.

Software” means the proprietary product provided by Responsive as identified on an Order Form and  subsequently made available to You by Responsive in accordance with this EULA.

2. CONFIDENTIALITY 

2.1. Each party agrees not to disclose, duplicate, publish, release, transfer or otherwise make available to third parties, except Users, the other party’s Confidential Information without the other  party’s prior written consent. Confidential information is the information which based on the  circumstances under which it was disclosed, a reasonable person would believe to be confidential  to the Disclosing Party, including, with respect to you, your Content (as defined in Section 3 below)  and Personal Information. Confidential Information of Responsive includes, non-public information  relating to the Software, Services, Professional Services and Documentation. Confidential  Information does not include information that the Receiving Party can document is: (i) previously  known to the Receiving Party prior to disclosure by the Disclosing Party, without any obligation of  confidentiality; (ii) is or becomes generally known to the public without breach of a party’s confidentiality obligation under this EULA; (iii) rightfully  received from a third party under no confidentiality obligation with respect to the Confidential  Information; and (iv) was independently developed by a Party without use of the Disclosing Party’s  Confidential Information.

2.2. Obligation to Protect Confidential Information. A Receiving Party will: (i) limit access and  use of Disclosing Party’s Confidential Information to those of the Receiving Party’s employees  and agents that require such access and use on a need-to-know basis in connection with the  EULA; (ii) not disclose the Disclosing Party’s Confidential Information to third parties unless  authorized pursuant to this Section; (iii) protect the Disclosing Party’s Confidential Information as  it protects its own Confidential Information, but in any event with not less than a reasonable degree  of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as  required to exercise its rights or perform its obligations hereunder or as otherwise specifically  permitted by the other Party.

2.3. Permitted Disclosures. The Receiving Party may disclose Disclosing Party’s Confidential  Information:

(i) if and to the extent required by a governmental or regulatory authority or otherwise as  required by applicable law, provided that the Receiving Party must first give the Disclosing  Party notice of such compelled disclosure (except where prohibited by applicable law from  doing so) and must use commercially reasonable efforts to provide the Disclosing Party,  unless prohibited by applicable law, with an opportunity to take such steps as desired by  the Disclosing Party to challenge or contest such disclosure or seek a protective order.  Thereafter, the Receiving Party may disclose the applicable Confidential Information, but  only to the extent required by the applicable governmental or regulatory authority or  applicable law and subject to any protective order that applies to such disclosure;

3. USER CONTENT   

3.1. Use of Content and Privacy.

In the course of using the Services, you may submit content  to Responsive (including your Personal Information and the Personal Information of others) or third  parties may submit content to you through the Software (your “Content”). We know that by giving  us your Content, you are trusting us to treat it appropriately. Responsive’s Privacy Policy,  together with any Service-specific data use policies, privacy statements and privacy notices  (collectively, “Privacy Policies”), detail how we treat your Content and Personal Information and  we agree to adhere to those privacy policies. You in turn agree that Responsive may use and share  your Content in accordance with our Privacy Policy.

3.2. User Content Ownership.  

3.2.1. The Services display content provided by others that is not owned by Responsive. Such  content is the sole responsibility of the entity that makes it available. Correspondingly, you  are responsible for your own Content and you must ensure that you have all the rights and  permissions needed to use that Content in connection with the Services. Responsive is not  responsible for any actions you take with respect to your Content, including sharing it  publicly. Please do not use content from the Services unless you have first obtained the  permission of its owner, or are otherwise authorized by law to do so.

3.2.2. Limited License to Your Content. You grant Responsive a worldwide, royalty free license  to use, reproduce, distribute, modify, adapt, create derivative works, make publicly  available, and otherwise exploit your Content, but only for the limited purposes of providing  the Services to you and as otherwise permitted by Responsive’s Privacy Policy. This license  for such limited purposes continues even after you stop using our Services, though you  may have the ability to delete your Content in relation to certain Services such that Responsive no longer has access to it. This license also extends to any trusted third parties we work  with to the extent necessary to provide the Services to you. If you provide Responsive with  feedback about the Services, we may use your feedback without any obligation to you  pursuant to Section 3.4 below.

3.3. Content Review.

You acknowledge that, in order to ensure compliance with legal obligations, Responsive may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this EULA (such as when unlawful content is reported to us). We  may also modify, prevent access to, delete, or refuse to display content that we believe violates  the law or this EULA. However, Responsive otherwise has no obligation to monitor or review any  content submitted to the Services.

3.4. Feedback.

If you provide suggestions, comments and feedback regarding the Services  (“Feedback”) you covenant that any Feedback provided by Users/Customer, including, in each  case all intellectual property rights therein or relating thereto, are and shall remain the exclusive  property of Responsive or its licensors. Customer (including its Users) hereby assigns to Responsive all of  its rights, title, and interest in and to any Feedback, including all intellectual property rights therein  or relating thereto. The Parties acknowledge and agree that the Feedback shall not contain any  Content.

3.5. Third-Party Resources.

Responsive may publish links in its Services to internet websites  maintained by third parties. Responsive does not represent that it has reviewed such third-party  websites and is not responsible for them or any content appearing on them. Trademarks displayed  in conjunction with the Services are the property of their respective owners.

4. USER REQUIREMENTS 

4.1. Legal Status.

None of the Services are intended for use by individuals denoted as minors in the country where they reside. If you are a minor or do not have the power to form a contract with Responsive, you may not use the Services. If you are using the Services on behalf of a business entity,  you warrant that the business is validly formed and existing under the laws of your jurisdiction of formation and that you have duly authorized your agent to bind you to this EULA.

4.2. Embargoes.

You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law  from receiving the Services or are on the U.S. Department of Commerce’s Denied Persons List  or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are  not permitted to purchase any paid Services from Responsive.

5. RESPONSIVE INTELLECTUAL PROPERTY RIGHTS 

5.1 Intellectual Property. Responsive will provide User with a non-exclusive, non-transferable,  revocable license to use the Software and Services in accordance with the Documentation.  Responsive shall exclusively own and retain all rights, title and interest in and to the Software,  Services, and Documentation, including all related Responsive Intellectual Property Rights or other  similar rights, which shall not include Customer Data. Responsive’s Intellectual Property Rights shall  extend to all Updates, customizations or other changes to the user interface, functionality,  compatibility, capabilities, performance, efficiency, or quality of Software and Services developed  by Responsive at any time.

5.2 Generative AI Intellectual Property Rights. Responsive hereby grants the User a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use certain Generative AI Technologies during the Term, unless otherwise agreed by the Parties, and solely for the intended purpose as set forth herein. The use of the Generative AI Technologies is subject to User’s compliance with any and all applicable laws and this Agreement. Responsive shall not permit third-party sub-processors of the Generative AI Technologies to use User’s Output to train their Al models.

6. USER USAGE AND RESTRICTIONS 

6.1 Permitted Usage. We provide the Responsive product to enable Users to create, share, upload  or attach information to, and edit “Requests for Proposal (RFPs)” and “Proposals” that are stored  on the Service. “Users” are those individuals that are authorized by Responsive Customers to use the  Service solely for the purpose of participating in RFPs and Proposals. When you receive access  credentials from Responsive’s Customer, you may use the Service solely to view and submit content  to RFPs and Proposals.

6.2 Generative AI Usage. User is solely responsible for the Customer Data run by User through AI Generative Technologies. Further, by using the Generative AI Technologies, the User will receive output generated and returned by the Generative AI Technologies based on the Customer Data (“Output”). When User uses the Generative AI Technologies, as between the Parties and to the extent permitted by applicable law, User owns the Output. The Generative AI Technologies may be used for any legal and lawful purpose, including commercial purposes and publication, at User’s own risk. Prior to publication, it is recommended to add a disclosure that the Output was generated by artificial intelligence tools. Due to the nature of Generative AI Technologies, Output may not be unique across users and the Generative AI Technologies may generate the same or similar output for third parties.

6.3 Restricted Usage. User specifically agrees not to: (a) “frame,” distribute, resell, or permit  access to the Service by any third party; (b) permit multiple end users to access the Service using  shared login credentials (i.e., a shared email address and password); (c) use the Service other  than in accordance with the instructions or documentation we provide and in compliance with  applicable federal, state, and local laws; (d) interfere with the Service or disrupt any other user’s  access to the Service; (e) reverse engineer, attempt to gain unauthorized access to the Service,  or attempt to discover the underlying source code or structure of the Service; (f) submit to the  Service any content or data that is false, misleading, defamatory, threatening, offensive, or  infringing of intellectual property rights, or that contains mass mailings or any form of “spam”; (g)  submit to the Service any disabling code, malicious code, virus or other malware; (h) engage in  data scraping or data extraction outside of the ordinary features of the Service; or (i) register for  or use our Service to monitor or test the availability or performance of the Service, or for other  benchmarking or competitive purposes.

6.4 Restricted Data. The Software is not designed to host, process, or store sensitive Personal  Information such as Personal Health Information. Both Customer and User are responsible for  ensuring that the use of the Software and provision of any such Personal Information is in  compliance with applicable Privacy Laws. User represents that it has obtained all necessary  notice, consents, and authority to upload any such Personal Information into the Software.

7. ACCOUNT MANAGEMENT; UPDATES; SUSPENSION OF ACCESS 

7.1 Account Management– Responsive will provide you access to, and use of, the Software, Services,  and Documentation by enabling an account for you to access through a web browser (herein  “Account”). You will designate individuals and authorize them to manage, use, and support the  Account, including, the creation of usernames and passwords for Users. You are solely  responsible for maintaining the status of your Users and the confidentiality of all usernames,  passwords, and other Account access information under its control. You will contact Responsive  promptly if Account information is lost, stolen, or disclosed to an unauthorized person or any other  breach of security in relation to its passwords, usernames, or other Account access information  may have occurred or is likely to occur.

7.2 Changes and Updates– Responsive will make improvements to the Software and Services and make updates to the Software and Services as deemed appropriate by Responsive and may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Software and Service. If you do not cease using the Software and Service, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Software and Service and you agree to promptly install any Updates Responsive provides.

7.3  Suspension of Software Access. We may immediately suspend or deny access to or use of all or any part of the Software or Services to you or one or more of your Users, without any liability to you or others, if (i) we are required to do so by law or court order; or (ii) you have, your Affiliate has or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) has (A) accessed or used our Software or Services or Responsive Materials in violation of this EULA, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Software or Services, or (C) otherwise failed to comply with this EULA.Unless we have exercised our right to terminate this EULA pursuant to Section 8, we will promptly restore access to the Software, Services and Responsive Materials as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 8 or any other rights or remedies under this EULA, at law or in equity.

8. TERM AND TERMINATION OF ACCESS  

8.1 Term. The term of this EULA will begin on the date of your first use of the Software to access  a project and will terminate upon the conclusion of all active projects in which you participate.  After termination, any future projects in which you participate will be subject to the version of the  EULA in effect at the time you start participating in a future project.

8.2 Termination of Software Access. Responsive may terminate this EULA, at any time, for breach  of a material obligation, if, after providing written notice to You of such breach, You fail to cure  such breach within thirty (30) days thereafter; provided, however, such cure period will not apply  with respect to payment breaches. Sections 2, 3, 6.3 and 9.2 of this EULA , will survive the  termination or expiration of this EULA.

9. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY,  INDEMNIFICATION 

9.1 DISCLAIMER OF WARRANTIES 

TO THE EXTENT NOT PROHIBITED BY LAW, RESPONSIVE HEREBY DISCLAIMS ALL EXPRESS  OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE SERVICE,  INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES, GUARANTEES,  AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,  TITLE, NONINFRINGEMENT, AND QUALITY OF SERVICE INCLUDING AS TO THE OPERATION OF THE GENERATIVE AI TECHNOLOGIES OR THE INFORMATION IN THE OUTPUT OR THE USE THEREOF. RESPONSIVE MAKES NO  REPRESENTATIONS OR WARRANTIES REGARDING THE CONTENT, EFFECTIVENESS,  USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY,  ACCURACY OR COMPLETENESS OF THE SERVICE OR THE RESULTS YOU MAY OBTAIN  BY USING THE SERVICE OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, USE OF THE RESPONSIVE’S GENERATIVE AI TECHNOLOGIES MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT THE ACTION GENERATED.  USER SHALL EVALUATE THE ACCURACY OF ANY OUTPUT AND SHALL NOT RELY ON RESPONSIVE TO DO SO. RESPONSIVE WILL HAVE NO LIABILITY OR RESPONSIBILITY ARISING IN ANY WAY FROM USER’S USE OF THE GENERATIVE AI TECHNOLOGIES OR ANY ERRORS OR OMISSIONS CONTAINED IN THE OUTPUT. USER WAIVES ANY AND ALL CLAIMS THAT USER MAY HAVE AGAINST RESPONSIVE AND ANY DIRECTOR, OFFICER, EMPLOYEE OR AGENT ARISING OUT OF THE USE OF THE GENERATIVE AI TECHNOLOGIES. YOU UNDERSTAND AND AGREE THAT IF YOU DOWNLOAD OR OTHERWISE  OBTAIN MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS, OR  SERVICES FROM THIS WEBSITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK AND  THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT,  INCLUDING LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM.

9.2 LIMITATION OF LIABILITY 

Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to  exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, UNDER NO CIRCUMSTANCES WILL RESPONSIVE OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF USE OF MONEY OR USE OF SERVICES, INTERRUPTION IN THE USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF THE PURPORTED BREACH OR FAILURE OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL RESPONSIVE’S LIABILITY UNDER THIS EULA EXCEED THE SUBSCRIPTION FEES RECEIVED BY RESPONSIVE FROM THE CUSTOMER ENGAGING IN THE SERVICES FOR WHICH YOU HAVE BEEN GRANTED ACCESS DURING THE TWELVE (12)MONTHS PRECEDING THE APPLICABLE CLAIM, IN EACH CASE, WHETHER OR NOT RESPONSIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3  INDEMNIFICATION 

9.3.1 You agree to indemnify, hold harmless and defend Responsive, its Affiliates and the respective  officers, directors, employees, agents, successors and assigns from and against any claims or  suits, including reasonable attorneys’ fees and expenses, which arise or result from any Third Party Claim alleging that your Data infringes the Intellectual Property Rights (“IP rights”) of a third  party, your breach of any terms and conditions of this EULA, or your use of the Software or  Services in violation of any applicable law.

9.3.2 Responsive agrees to indemnify, hold harmless and defend you from and against any claims or  suits, including reasonable attorneys’ fees and expenses, which arise or result from any claim brought against you alleging that any Software or Services infringes or misappropriates a third party’s U.S. registered patent right, trademark, or copyright (an “Infringement Claim”). Responsive’s  indemnity obligation under this Section shall not extend to claims that arise from: (a) an  unauthorized modification of the Software or Services by you (b) customized portions of the  Services designed in accordance with written specifications provided by you where the Software  or Services would not be infringing but for Responsive’s compliance with such written specifications;  (c) the failure on your part to install an Update to the Software or Services provided by Responsive,  such Updates which require your consent or installation permission, that would have avoided the  actual or alleged Infringement Claim; (d) the combined use by you of the Software or Services  with other components, products, or services not provided by Responsive where the Software or  Services would not be infringing but for such combination for such combination is not pre approved by Responsive and is not provided by Responsive during the then current Subscription Term; or  (e), analytic applications, algorithms or other applications or programming built by you or created  by or on behalf of you without Responsive’s approval.

9.3.3 For any claim covered by Section 9.3.2, we will, at our election, either: (A) procure the rights  to use that portion of the Software or Services alleged to be infringing; (B) replace the alleged  infringing portion of the Software or Services with a non-infringing alternative; (C) modify the  alleged infringing portion of the Software to make it non-infringing; or (D) if none of (A), (B), or (C)  are commercially reasonable, terminate this EULA and provide you a pro-rata refund of the Fees  paid for the Software and Services under this EULA based on the terminated portion of the current year of this EULA.

9.3.4 Indemnification – Process. The obligations under Sections 9.3 (1) – (3) will apply only if the  party seeking defense or indemnity: (i) gives the other party prompt written notice of the claim; (ii)  permits the other party to control the defense and settlement of the claim; and (iii) reasonably  cooperates with the other party (at the other party’s expense) in the defense and settlement of  the claim. In no event will a party agree to any settlement of any claim that involves any  commitment by the other party or performance by the other party of an affirmative act (other than  the payment of money) without the prior written consent of the other party.

9.4 THE FOREGOING ARE THE PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND  THE PARTIES SOLE AND EXCLUSIVE REMEDIES FOR INDEMNIFICATION.

10. JURISDICTION/GOVERNING LAWS 

This EULA and all acts and transactions pursuant hereto and the rights and obligations of the  parties hereto shall be governed, construed, and interpreted in accordance with the laws of the  State of Delaware, without giving effect to principles of conflicts of law.

11. MISCELLANEOUS/OTHER TERMS

11.1 All notices under this EULA will be in writing and will be deemed to have been duly given  when received if personally delivered; when receipt is electronically confirmed, if transmitted by  facsimile or electronic mail; the day after it is sent, if sent for next day delivery by recognized  overnight delivery service to Customer at the addresses listed on the current Order Form or SOW  or to Responsive at the address listed herein; Attn: Chief Executive Officer, with a copy to  [email protected]; and upon receipt, if sent by certified or registered mail, return receipt  requested.