1.1 Sybill provides the Service as a cloud-based sales enablement platform that helps you record, transcribe, analyze and share your sales team’s audio and video calls and online demos (together with all other information data that you make accessible to Sybill, “Content“).
1.2 Sybill provides you a right and permission to use the Service subject to a valid Subscription, pursuant to the terms of the Order Form.
1.3 During the Term, Sybill will grant you access to the Service or certain parts of it, which will allow Sybill or you to add end-user accounts (“Permitted Users“) and to control or manage certain features of the Service. Permitted Users’ access to the Service is limited and personal. You are responsible for actions taken by Permitted Users or by anyone using your accounts and passwords.
1.4 During the Term, Sybill will use reasonable and appropriate measures designed to protect the Service against virus attacks, hacking, and denial of service interruptions. However, Sybill cannot guarantee that the Service will operate in an uninterrupted or error-free manner. Sybill shall not be liable for any interruption in service or downtime that is the result of matters beyond its reasonable control.
During the Term and for a reasonable wind-down period thereafter, you grant Sybill a limited, non-exclusive, non-transferable (except as set forth in Section 13) worldwide, royalty-free, license to access, read, store, use, reproduce, display, modify, and disclose Content, solely for the purposes of (i) providing the Service, (ii) performing and enforcing this Agreement, detecting, preventing or addressing any technical or security issues or fraud, and responding to your support requests.
3.1 You assume full responsibility for You and your Permitted Users’ use of the Service in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and warrant that you have obtained all rights in the Content to authorize Sybill to input, process, distribute and display the Content as contemplated by the Agreement.
3.2 You will not, and ensure that your Permitted Users will not, use the Service or Content for any use or purpose that: (i) is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence; (ii) infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity); (iii) is in violation or may encourage any manner of acting that would violate any applicable local, state, national and foreign laws, treatises and regulations; or (iv) may drive or encourage any third party to do any of the above.
3.3 You will not, and will ensure that your Permitted Users will not: (i) resell, transfer, grant others permission to use the Service, pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (ii) modify, remove or amend Sybill’s name or logo, update, reproduce, duplicate, copy all or any part of the Service; (iii) make any of the Service or Content available to anyone other than your employees and consultants for use for your benefit as intended pursuant to this Agreement, or use any Service or Content for the benefit of anyone other than you; (iv) use the Service in any way that restricts or inhibits the use of the Service; (v) access or attempt to access any of Sybill’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices; or (vi) attempt to decompile, disassemble, re-engineer or reverse engineer the Service or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Service, its structural framework or allow or facilitate a third party, to violate or infringe any rights of Sybill’s or others or Sybill policies or the operational or security mechanisms of the Service.
4.1 “Confidential Information” means all information provided by a party to other 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, and excluding any information that was or has become publicly available without the receiving party’s actions or inactions. Sybill’s confidential information includes, without limitation, the Service’s features, functionality and performance and your view of the Service.
4.3 Content is deemed confidential information for the avoidance of doubt. For clarity, the Service’s features, functionality, performance, metrics, compilations, and roadmap plans relating to the Service, and all Feedback (defined below) are deemed Sybill’s Proprietary Information (and not yours), and shall not be disclosed or used outside of normal use of the Service notwithstanding Sections 4.2
4.5 Each party warrants that they will comply with their respective obligations under applicable privacy regulations (e.g., General Data Protection Regulations (“GDPR”), California Consumer Privacy Act (“CCPA”), etc.) as well as the terms of this Agreement. As such, in the context of the GDPR, the parties hereby agree and acknowledge that Sybill is a Processor of any Personal Data transmitted to it by you (as those terms are defined in the GDPR). In the context of the CCPA, Sybill is a Service Provider, and this Agreement constitutes the contractual relationship with a Business to process the Personal Information of Permitted users (as those terms are defined in the CCPA). In addition to the foregoing Sybill will undertake all reasonable security measures required in accordance with applicable privacy regulations, and at your written request will provide a written description of, and rationale for, Sybill’s technical and organizational measures implemented, or to be implemented, to protect the Personal Data/ Personal Information supplied to it by you that Sybill will process in connection with the Service provided pursuant to this Agreement. In addition to the foregoing to the extent applicable, each party will comply with the terms of any data processing agreement mutually executed between them concurrently herewith.
5.1 Except as otherwise expressly set forth herein, Sybill alone (and its licensors, where applicable) will retain all right, title and interest, in and to the Service, all improvements, enhancements or modifications thereto, and to any suggestions, enhancement requests, or feedback, provided by or on behalf of you directly relating to the Service (“Feedback”), and all intellectual property rights related to any of the foregoing; and you hereby do and shall make all assignments necessary to accomplish the foregoing. In addition, Sybill retains all rights to aggregated and anonymous data derived from your use of the Service, with the understanding that such data will not be identifiable as belonging to or emanating from you nor will such data contain information that directly or indirectly identifies you or any other person (natural or otherwise).
5.2 Subject to compliance with the terms and conditions of this Agreement, you are hereby granted a limited, non-exclusive, non-transferable (except in accordance with Section 13), right to use the Service during the Term for its internal purposes only. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or any intellectual property rights related thereto. All rights relating to the Service not expressly granted herein are reserved by Sybill.
5.3 Certain reports generated by the Service and made available to you in connection with this Agreement contain, in part, proprietary information of Sybill relating to its Service and the metrics or components used to operate and provide the Service (“Service Information”). You shall not disclose Service information, even when included in such reports, to any third party either during or after the Term without Sybill’s prior written consent, which shall not be unreasonably withheld.
5.4 Each party owns and shall own all goodwill generated from or associated with its trademarks, including any use thereof. Neither party shall make any reference (for promotional purposes or otherwise) to this Agreement or any relationship between the parties without the other party’s prior written consent, except as otherwise expressly provided in this Agreement.
6.1 The Service is provided on a subscription basis, and in consideration for the right to use the Service under the terms herein, you will pay subscription fees in the amount and payment terms under the applicable Order Form (the “Subscription Fees”). Except to the extent otherwise expressly stated in this Agreement or in an order form, all obligations to pay Subscription Fees are non-cancelable and all payments are non-refundable.
6.2 Unpaid amounts that are not promptly disputed in good faith, and that are more than thirty (30) days past due are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection, and may result in immediate termination of Service in accordance with Section 7.2 below.
6.3 Sybill’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder. If Sybill has an obligation to pay or collect Taxes for which Customer is responsible under this Section, Sybill will invoice you and you shall pay that amount unless you provide Sybill with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sybill is responsible for taxes assessable against it based on its income, real and tangible property, and employees.
6.4 Sybill reserves the right to modify the Subscription Fees for the Service under one or more Order Forms, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least 30 days before the end of the then-current Subscription Term.
7.1 The initial subscription term of the Agreement will be as set forth and agreed by the parties in the Order Form.
7.2 Either of you and Sybill may terminate this Agreement if the other party (i) materially breached this Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under this Agreement or the applicable law, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3 At the end of the initial subscription term, all your Sybill subscriptions (including any additional subscriptions added to your account) will renew automatically for additional 12-month periods unless you or Sybill notifies the other in writing, at least 30 days prior to the end of the then-current subscription term, that it chooses not to renew (initial subscription term, with any renewal subscription terms, the “Subscription Term”).
7.4 Upon termination or expiration of this Agreement; (a) you will cease use of the Service and all rights granted to you under this Agreement will terminate; (b) upon written request, we will make your recorded calls available for you to download, or export within 30 days following such termination, and (c) Sections 3 through 13 survive termination of the Agreement. Thereafter, Sybill will be under no obligation to maintain your recorded calls, or make them available to you and Sybill may delete any of your Content.
7.5 In the event of a termination due to uncured breach by Sybill pursuant to Section 11.2, Sybill will refund the remaining Subscription Fees until the end of the Subscription Term.
Each party represents and warrants to the other that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. SYBILL HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
9.1 Sybill will defend, hold harmless and indemnify you, your officers, directors, employees, agents and affiliates from and against any damages, liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys’ fees, payable to a third party in connection with any claim or action by a third party that is not an entity legally related to you alleging that the Service infringes or misappropriate the intellectual property rights of such third party; provided that Sybill is notified promptly in writing of the action, and Sybill is given the option, at its expense, to have sole control of the action and all requested reasonable assistance to defend the same. However, Sybill shall have no obligation for any claim of infringement to the extent the claim arises from (i) modifications to the Service created by you or your representatives (if the claim would not have arisen but for such modification); (ii) combination or use of the Service with other materials not provided, directed or created by Sybill (if the claim would not have arisen but for such combination or use); (iii) Sybill compliance with a your requirement, specification or design if the implementations of that requirement, specification or design are the basis of the claim; (iv) your use of the Service that is not in accordance with this Agreement and/or the documentation for the Service; or (v) your negligence or willful misconduct. Notwithstanding anything to the contrary, the above indemnification obligation represents Sybill’s entire liability and your sole remedy with respect to violation of third-party intellectual property rights relating to the Service.
9.2 You shall defend, hold harmless and indemnify Sybill from and against any damages, liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys’ fees, payable to a third party in connection with any claim or action by a third party that is not an entity legally related to Sybill arising from an alleged violation of the restrictions set forth in Sections 3.2 and 3.3; provided that your are notified promptly in writing of the action, and you are given the option, at your expense, to have sole control of the action and all requested reasonable assistance to defend the same.
TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (ii) EXCLUDING LIABILITY FOR A BREACH OF SECTION 4 (CONFIDENTIALITY), YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY SYBILL FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
This Agreement will be governed by laws of the State of California, USA without regard to its choice of law or conflicts of law principles. You and Sybill consent to the exclusive jurisdiction and venue in the courts in San Francisco, California, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.
Neither party will be deemed to be in breach of this Agreement for any failure caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war, pandemic or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.
13.2 You and Sybill are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and Sybill.
13.3 If any provision of this Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
13.4 The section titles in this Agreement are solely for convenience and have no legal or contractual significance. No provision of the Agreement will be construed against Sybill but rather will be construed in a neutral manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.
13.5 All modifications to or waivers of any term of this Agreement must be in a writing signed by you and Sybill and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
13.6 Sybill suppliers are beneficiaries of the limitations, obligations and restrictions contained in this Agreement that are protective of Sybill or the Service.13.7 This Agreement, and any rights granted hereunder, may not be transferred or assigned by a party, except to a successor of all or substantially all of its business or assets (by merger or otherwise).