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Idiomatic

TERMS OF SERVICE

Definitions

  1. Idiomatic we, us, or our means the Delaware corporation Idiomatic, Inc.
  2. Agreement means this terms of service agreement.
  3. Customer means the customer or business using the Idiomatic website and/or any additional products or services that have been provided by Idiomatic.
  4. Effective Date means the first date on which this Agreement is accepted by the Customer in their use of the Idiomatic products or services.
  5. Initial Delivery Date means the date on which the product is first delivered to the Customer (i.e., the first date on which the Customer has a valid login and can view their data on the Idiomatic web portal).
  6. End Users means internet or other users of the Customer’s products and services.

License to Use the Services

  1. License. Subject to Customer’s compliance with the terms of this Agreement, Idiomatic, Inc. (Idiomatic) hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Idiomatic data analytics services (the Services).
  2. Idiomatic Modifications. Without notice and without any liability to you, Idiomatic may at any time modify the Services, provided however that if the Services are materially diminished you may terminate this agreement upon written notice to Idiomatic and time to correct the Services as provided in the Section of this agreement titled Termination.
  3. Description of Services. While we do not guarantee or warranty any specific results (see the Section titled Disclaimer of Warranties and Limitations of Liability), the Services are intended to provide analysis of customer service interactions, by using human analysis or automated systems to provide topical and sentiment tags for customer service tickets.
  4. Restrictions on Use. Customer shall use the Services solely for internal business purposes. Customer shall not, and shall not allow others to: (i) cause or permit the reverse engineering, disassembly, or decompilation of any portion of any Services; (ii) remove any copyright notices or other proprietary notices or restrictions from any of the Services; or (iii) permit access or use of the Services by any third party, except Customer’s employees and contractors performing services for Customer’s benefit.
  5. Payment. Idiomatic will invoice Customer per each Work Order (substantially similar to Appendix C), for monthly invoicing Idiomatic will invoice Customer on the first day of each month. Payment of entire invoice amount is required within terms set forth in the corresponding Work Order. 
  6. Term. This license is granted indefinitely for as long as the Customer continues prompt payment and remains in good standing.
  7. Ownership. The Services constitute proprietary works of Idiomatic and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Idiomatic and its licensors retain all rights, title and interest, including all intellectual property rights, in the Services. The terms purchase and sale in reference to the Services notwithstanding, it is expressly agreed by the parties that title to the Services does not pass to Customer and Customer’s rights with respect to the Services will only be that of a licensee.

Data and Analytics

  1. Customer Authority to Use the Services. Customer represents that Customer owns or lawfully possesses all necessary authority, permissions, and approvals to (i) register for the Services and (ii) connect each of your designated helpdesk applications (each, an Application), and (iii) use the Services, which includes without limitation, providing all the information and data made available to the Services (the Raw Data) from the Customer.
  2. Ownership and Use of Raw Data. Customer shall retain all rights to Raw Data; provided, however, that subject to the confidentiality provisions of this Agreement and to the condition that Idiomatic will not disclose or sell the Raw Data to any third parties, including use of Raw Data to advertise to or otherwise contact the Customer’s end users, customers, or other users or visitors to each of the Customer’s Applications (the End Users), Customer hereby grants Idiomatic and its affiliates a fully-paid perpetual and irrevocable unrestricted license to use the Raw Data for internal use only and solely to train models and analyze and tag the topics and sentiment of messages within said Raw Data, provided that Idiomatic will not disclose data in any manner that renders the Customer or its End Users personally identifiable or ascertainable. Idiomatic will delete Raw Data upon 90 days written notice from the Customer.
  3. Ownership of Analytical Results. Customer acknowledges and agrees that, notwithstanding any other provisions of this agreement, all results or analyses generated by Idiomatic in connection with our use of Raw Data that Idiomatic has labeled during Customer’s use of the Services (the Labeled Data), whether alone or in combination with information from other sources including Labeled Data (the Analytical Results) are and will be owned and retained by Idiomatic; provided, however, that Idiomatic shall not own or have any rights to any Protected Health Information (or “PHI”), where Protected Health Information has the same meaning as the term “protected health information” in 45 CFR § 160.103, limited to the information created or received by Idiomatic from or on behalf of Customer. Customer agrees that Idiomatic owns all right, title, and interest in and to the Labeled Data and Analytical Results, including all intellectual property rights therein.
  4. Use of Analytical Results. Except as specifically authorized by the Customer in writing, Idiomatic agrees not to distribute or publish any Labeled Data, Analytical Results, or any Raw Data upon which Analytical Results are based, in a manner that renders the Customer or its End Users ascertainable as a source, and in no event shall Idiomatic distribute or publish any PHI. Idiomatic grants the Customer a limited, non-exclusive, non-sublicenseable right to use the Analytical Results provided to the Customer, but only for Customer’s internal business purposes.

Customer Privacy Policy

  1. Customer Privacy Policies. Customer agrees that it will maintain a privacy policy that provides End Users with clear and comprehensive information about (i) the types of information that the Customer collects and how the Customer may use such information. The above disclosures need not directly reference any Idiomatic policy, but they must take into account that the Customer has directed that Idiomatic will use and store information for use in the Services.

Customer Account and Registration

  1. Username and Password. Customer acknowledges that it is solely responsible for maintaining the confidentiality of the account, user name, password, and any API keys provided by Idiomatic and that the Customer is solely liable for any losses incurred as a result of any unauthorized use of the Customer’s account. If the Customer has reason to believe that its account is no longer secure, the Customer agrees to immediately notify Idiomatic.
  2. Accuracy. Customer agrees to provide and maintain accurate and complete account information to Idiomatic. If the Customer should fail to do so, Idiomatic will have no liability for failure to deliver notices that result from inaccurate, incomplete, or out-of-date account information.

Customer Representations

  1. Customer Compliance with the Law. Customer will comply with all applicable local, state, national, and international laws, rules and regulations, including, without limitation, those governing the collection, transmission, processing, and disclosure of personal information (any, a Law or collectively, Laws) in Customer’s use of an integration with the Services and the performance of obligations under this Agreement. If at any time Customer is unable to comply with any Law or the other obligations set forth in this Agreement, Customer will immediately (i) notify Idiomatic in writing of Customer’s inability to comply with these requirements and (ii) suspend all use of the Services until such time that Customer is able to comply with Laws and all other obligations set forth in this Agreement.
  2. Idiomatic Compliance with the Law. Idiomatic will comply with all applicable local, state, national, and international laws, rules and regulations, including, without limitation, those governing the collection, transmission, processing, and disclosure of personal information (any, a Law or collectively, Laws) in Idiomatic’s providing the Services and the performance of obligations under this Agreement. If at any time Idiomatic is unable to comply with any Law or the other obligations set forth in this Agreement, Idiomatic will immediately (i) notify Customer in writing of Idiomatic’s inability to comply with these requirements and (ii) suspend the Services until such time that Idiomatic is able to comply with Laws and all other obligations set forth in this Agreement.
  3. Appropriate age. Customer represents that they are at least 18 years of age and a resident of the United States of America.
  4. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICES DOES NOT VIOLATE THE LAWS OF THE JURISDICTION(S) IN WHICH CUSTOMER OPERATES AND/OR OTHERWISE USE THE SERVICES, INCLUDING BUT NOT LIMITED TO OBTAINING ANY LEGALLY REQUIRED END USER CONSENT TO IDIOMATIC’S USE OF INFORMATION AS CONTEMPLATED UNDER THIS AGREEMENT.

Confidential Information

  1. Confidential Information means (i) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, Raw Data, trade secrets or any other information which is designated as confidential, proprietary or some similar designation and (ii) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (i). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. As to Idiomatic, Confidential Information includes, without limitation, any Services, related documentation, specifications, pricing, disclosures in connection with the Services and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.
  2. Nondisclosure. Information/items will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (i) lawfully available to the public through no act or omission of the receiving party; (ii) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (iii) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of two (2) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.

Termination

  1. Termination without Cause. The Customer may terminate this agreement unilaterally at any time, provided, however, that the Customer will still be responsible for any outstanding bills (or bills yet to be issued) which cover the current period of usage by the Customer.
  2. Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party is in material breach or default under this Agreement and fails to cure such breach within thirty (30) days of written notice from the non-breaching party.
  3. Effect of Termination. Any termination of this Agreement will not relieve Customer of any current or future obligation to pay any fees or other costs or invoices owed by Customer hereunder. On termination, Customer’s license to use the Services will cease at the end of the monthly period then in effect; provided, however, that the Sections titled Data and Analytics, Confidential Information, Indemnification, Disclaimer of Warranties and Limitations of Liability, and General (2-4) shall survive termination.

Indemnification

  1. Indemnification of Customer. Idiomatic, at its own expense, hereby agrees to indemnify and hold harmless Customer, its affiliates, successors, assigns, members, shareholders, officers, directors and agents and defend any action brought against the Company or any such person with respect to any claim, demand, cause of action, cost, loss, damage, expense (including reasonable attorney’s fees) or liability, as incurred, arising from or based on (i) the Services or licensed use of the Services violating or misappropriating any third party’s patents, copyrights, trademarks or any other intellectual property rights or (ii) Idiomatic’s breach or noncompliance with its obligations to third parties.
  2. Indemnification of Idiomatic. Except to the extent such claims arise out of the negligent acts or omissions or willful misconduct of Idiomatic, or Idiomatic’s breach of or non-compliance with its obligations hereunder, Customer hereby agrees to defend, indemnify, and hold harmless Idiomatic, its affiliates and licensors, and each of their respective employees, officers, directors, consultants, affiliates, subsidiaries, agents, licensors, and contracts (collectively, the Idiomatic Entities) from and against any third party claims for any and all damages, losses, liabilities, penalties, costs, and expenses (including any reasonable attorneys’ fees), including but not limited to those arising from any actual or threatened claim, demand, proceeding, audit, inquiry, or investigation by any person or entity (including without limitation any U.S. or other governmental body or agency) related to (i) Customer’s breach of any representations or warranties set forth in this Agreement, including, without limitation, those representations set forth in the Sections of this Agreement titled Customer Representations and Customer Privacy Policy; (ii) Customer’s failure to provide sufficient notice to or obtain necessary consent from any third party in connection with Customer’s use of the Services; or (iii) Customer’s violation or infringement of any third party right, including without limitation, any intellectual property, moral, publicity, confidentiality, property, or privacy right.
  3. Procedure for Indemnification. The obligations and liabilities of the indemnifying party to the indemnified party, and each respectively, under this Section, are subject to (i) the indemnified party promptly notifying the indemnifying party in writing of any action or claim; (ii) allowing the indemnifying party, at its expense, to control the defense (provided that the indemnifying party shall keep the indemnified party informed of, and shall consult with any independent attorneys appointed by the indemnified party at the indemnified party’s own expense regarding, the progress of such litigation, and shall not admit fault upon the indemnified party without that party’s consent); (iii) giving the indemnifying party sufficient information in the indemnified party’s possession and reasonable assistance required to defend such suit, claim or proceeding, but at no out-of-pocket expense to the indemnified party; and (iv) allowing the indemnifying party to pay any judgment or amount owed in settlement.

Disclaimer of Warranties and Limitations of Liability

  1. DISCLAIMER OF WARRANTIES. THE SERVICES AND ANY INFORMATION AND ANALYTICAL RESULTS ARE PROVIDED AS IS ON AN AS AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ANALYTICAL RESULTS AND RAWS DATA MAY BE DAMAGED OR LOST IN CONNECTION WITH USE OF THE SERVICES. FURTHERMORE, IDIOMATIC EXPRESSLY DISCLAIMS THE ACCURACY OF ANY ANALYTICAL RESULTS PROVIDED THROUGH THE SERVICES, OR ANY PARTICULAR RESULT OF THE USE OF THE SERVICES. IDIOMATIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND ACCURACY.
  2. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID BY THE CUSTOMER TO IDIOMATIC WITHIN THE LAST TWELVE (12) MONTHS HEREUNDER; PROVIDED HOWEVER, THAT THE FOREGOING LIMIT DOES NOT APPLY TO A PARTY’S OBLIGATIONS UNDER THE SECTIONS HEREIN TITLED CONFIDENTIAL INFORMATION AND INDEMNIFICATION, OR A PARTY’S OBLIGATIONS UNDER SECTION 7.1 OF THE BAA (“INDEMNIFICATION”), OR A PARTY’S LIABILITY INCURRED AS A RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT WILL EITHER PARTY HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATIONS, LOSS OF PROFITS OR USE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATION DOES NOT APPLY TO A PARTY’S OBLIGATIONS UNDER THE SECTIONS TITLED CONFIDENTIAL INFORMATION AND INDEMNIFICATION.
  3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES, SUCH AS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.

General

  1. Governing Law. This Agreement is governed in all respects by the laws of the State of Delaware without reference to conflict of law provisions.
  2. Dispute Resolution. The parties shall resolve any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a Dispute) under the provisions of this Section. The parties shall first attempt in good faith to resolve any Dispute by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within fifteen (15) business days after one party provides notice to the other party of such Dispute (Dispute Notice), either party may, by written notice to the other party (Escalation to Executive Notice), refer such dispute to the executives of each party (Executive(s)). If the Executives cannot resolve any Dispute during the time period ending fifteen (15) business days after the date of the Escalation to Executive Notice, the Dispute shall be resolved by non-appearance based binding arbitration, rather than in court. Except as otherwise provided in this Agreement, this includes any claims based in contract, statute, tort, fraud, misrepresentation or any other legal theory. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
  3. Initiation and Manner of Arbitration. Either party can initiate arbitration through the alternative dispute resolution provider the American Arbitration Association (the AAA) pursuant to the then-current Supplementary Procedures for Consumer-Related Disputes (the Consumer Rules), both of which are available at the AAA website www.adr.org. Customer’s arbitration fees and share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Idiomatic will pay all arbitration fees and expenses.The arbitration shall be conducted by telephone or electronic means and/or shall be solely based on written submissions, the specific manner of which shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. Customer and Idiomatic each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties each waive any right to a jury trial and agree to proceed only on an individual basis and not in a class, consolidated, or representative action. The parties hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in this Agreement. 
  4. Preliminary Injunctive Relief. The parties both agree that either may bring suit in court to obtain interim or preliminary injunctive relief necessary to protect the rights or property of either party and all of its partners, affiliates, shareholders, employees, and agents of any kind (together, Affiliates).
  5. Sublicense and Assignment. Neither party may sublicense or assign this Agreement or any parts thereof, directly or indirectly, by operation of law, merger, change of control, or otherwise, without the prior written consent of the other party, such consent in the case of assignment by operation of law, merger or change of control not to be unreasonably withheld, conditioned or delayed. Any sublicense or assignment in violation of this section shall have no legal force or binding effect. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted sublicensees and assignees.
  6. Waiver. The waiver of any default or breach of this Agreement or failure to enforce any provision herein will not constitute a waiver of any other or subsequent default or breach. To be effective, any waiver must include written consent of the waiving party.
  7. Severability. If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
  8. Force Majeure. Neither party will be liable to the other on account of any loss or damage resulting from any failure to perform or delay if such failure or delay is caused by circumstances beyond the control of the other party.
  9. Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
  10. Amendment. After the Effective Date, Idiomatic and Customer may amend any term hereof only by mutual written consent.
  11. Entire Agreement. This Agreement is the entire and exclusive understanding between Customer and Idiomatic relating to the subject matter hereof and supersedes any and all prior agreements and understandings (including without limitation any separately executed confidentiality agreement) between the parties, whether oral or in writing.
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