PLEASE READ THESE TERMS OF SERVICE CAREFULLY. These Terms of Service (the "Agreement"), including any Order(s) incorporating the Agreement, are entered into between CometChat Inc., a Delaware corporation doing business as Crossword ("Crossword"), and the customer identified in the applicable Order or that accepts this Agreement online (also referred to as "Customer") (each a "Party" and collectively, the "Parties"), related to Customer's access to and use of the Software. The Agreement shall be effective on the earlier of the applicable Order Effective Date and the date Customer first accepts this Agreement online (the "Effective Date").
Acceptance. Customer accepts this Agreement by (a) signing an Order that references this Agreement, (b) clicking a button or checking a box indicating acceptance, or completing an online sign-up or plan selection, on the Crossword website or dashboard, or (c) accessing or using the Software. The individual accepting this Agreement represents that they have authority to bind Customer. This Agreement may be executed electronically; Customer's electronic assent constitutes a "signing" and the electronic text of this Agreement constitutes a writing for all purposes. If the individual does not have such authority, or Customer does not agree to this Agreement, Customer may not access or use the Software.
Orders. An "Order" means (a) an order form, quote or statement of work signed by both Parties that references this Agreement, or (b) an online purchase of Credits completed by Customer through the Crossword website or dashboard, or (c) a purchase of Credits or other access to the Software made through a Platform's billing system (as defined in Section 10.1). An Order may be (i) a purchase of prepaid Credits on a pay-as-you-go basis ("Prepaid Credit Order"), or (ii) a commitment to purchase Credits for a fixed term, invoiced as set forth in the Order ("Committed Order"). The "Order Effective Date" is the effective date stated in the Order or, if none is stated, the date the Order is signed or completed. In the event of any conflict between an Order and this Agreement, this Agreement controls unless the Order expressly states that it overrides a specific Section of this Agreement.
1. Provision of the Software
1.1 Grant of Rights. As set forth in an Order, Crossword grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Term for Users to access and use Crossword's cloud-hosted artificial intelligence commerce and customer-experience platform, including the Crossword dashboard, AI agents, the Crossword widget, application programming interfaces, software development kits and related documentation, including as made available at crossword.ai, app.crossword.ai, app.crswrd.ai, widget.crswrd.ai and api.crswrd.ai (the "Software"), solely for Customer's business purposes, and to deploy the Crossword widget and AI agents on websites, applications and messaging channels owned or controlled by Customer ("Customer Properties"). A "User" means an employee or independent contractor of Customer whom Customer authorizes to access the Software dashboard. Customer shall be bound by any further restrictions set forth in the Order, which may include limitations on the number or type of Users, conversations, AI credits, voice minutes, data storage or transfer. All rights not expressly granted to Customer are reserved by Crossword and its licensors or other providers. There are no implied rights.
1.2 End Users. Customer may permit its customers and visitors to Customer Properties ("End Users") to interact with the Crossword widget and AI agents deployed by Customer, subject to the restrictions and limitations set forth herein, provided that (i) all acts and omissions of End Users in connection with the Software shall be deemed to be those of Customer, and Customer shall be responsible therefor; (ii) End Users receive no right to access or use the Software other than to interact with Customer's deployment, and may not distribute or otherwise commercialize the Crossword Technology; and (iii) Customer is solely responsible for its terms, notices and relationship with End Users.
1.3 Restrictions. Customer shall not (and shall not allow any User or End User to): (a) use the Software for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Software, or for any other purpose not expressly permitted herein; (b) permit any person other than Users to access or use the Software, except End Users interacting with Customer's deployment as permitted in Section 1.2; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Software, directly or indirectly, to any third party, except as permitted in Section 1.2; (d) alter, modify, create derivatives (or compilations or collective works) of, debug, reverse engineer, decompile, disassemble or otherwise attempt to derive or gain access to any underlying software (including source code), models, prompts or technology associated with the Software; (e) use the Software for any unlawful, deceptive or harmful purpose, or attempt to gain unauthorized access to the Software or to other customers' data; (f) use any robot, spider, scraper or other automated means to access the Software, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Software; (g) attempt to manipulate, "jailbreak" or bypass the safety controls or usage limits of the AI features of the Software, or use them to generate content that is unlawful, harassing, deceptive or infringing; (h) use the Software or any Outputs to develop, train or improve any artificial intelligence model or any product or service that competes with the Software; or (i) exceed any usage or rate limits set forth in the Order or the documentation. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefore. Customer shall keep all passwords, API keys, certificates, access codes or other login information (collectively, "Passwords") safe and secure, and shall be responsible for all use of the Software using Passwords issued to Customer and Users. Customer shall notify Crossword immediately at legal@crossword.ai of any actual or suspected unauthorized use of its Passwords for the Software. Without limiting any of its other rights or remedies, Crossword reserves the right to suspend any User's or End User's access to the Software if Crossword reasonably believes that such person has materially violated the restrictions and obligations in the Agreement (in which case, it shall provide Customer prompt written notice of such suspension), or to protect against fraudulent or suspected fraudulent activity or misuse of the AI features. For purposes of this paragraph, any references to "Software" shall also include any related documentation provided or made available by Crossword to Customer.
1.4 Support Services. Subject to the terms and conditions herein, Crossword will perform for Customer during the Term the technical support services specified in an Order (the "Support Services"). For the avoidance of doubt, Crossword shall provide the Support Services only to Customer, and shall not be responsible for providing any support or maintenance directly to End Users or responding to requests or inquiries from End Users.
1.5 Customer Cooperation. Customer shall (and shall cause each User to): (a) reasonably cooperate with Crossword in all matters relating to the Software and Support Services; (b) respond promptly to any Crossword request to provide information, approvals, authorizations or decisions that are reasonably necessary for Crossword to provide the Software and Support Services in accordance with this Agreement; (c) provide such materials or information as Crossword may reasonably request to provide the Software and Support Services and ensure that such materials or information are complete and accurate in all material respects; and (d) provide accurate, current and complete account and registration information and keep it up to date.
1.6 Beta Features. Crossword may make certain new features or functions available to Customer and will endeavor to identify such features or functions on the Software as beta, preview or experimental ("Beta Features"). Although Crossword will strive to provide support services for the Beta Features, Customer acknowledges and understands that Beta Features are in a development and testing stage and that (i) Beta Features and any functionality arising from such Beta Features may change or be discontinued, at any time, without prior notice; (ii) Beta Features may not function properly and/or without interruption and Crossword has no obligation to correct any defects related to the Beta Features; (iii) Crossword's service level commitments do not apply to use of the Beta Features; (iv) Crossword is not responsible for any issues or disruptions related to use of the Beta Features, including such issues that disrupt access and use of the Software; (v) Customer's sole remedy for any issues or disruptions arising from the Beta Features is to stop using the Beta Features; and (vi) Crossword makes no representations or warranties, whether oral or written, regarding the Beta Features. Beta Features should not be used with data Customer is not prepared to lose.
1.7 Crossword Technology. In connection with providing the Software for access and use by Customer hereunder, Crossword shall operate and support the hosted environment used by Crossword to provide the Software, including the Crossword Technology, the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Crossword. As used herein, "Crossword Technology" means all of Crossword's proprietary technology (including the Software, Beta Features, the Crossword widget, AI agents and agent frameworks, prompts, models developed by or for Crossword, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Crossword in providing the Software.
1.8 Downtime. Crossword shall use commercially reasonable efforts to provide access to the Software twenty-four (24) hours a day, seven (7) days a week. Customer acknowledges that from time to time the Software may be inaccessible or inoperable for various reasons, including: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Crossword may undertake from time to time; or (c) causes beyond the reasonable control of Crossword, including interruption or failure of telecommunication or digital transmission links, hosting or AI model providers, hostile network attacks or network congestion or other failures (collectively "Downtime").
1.9 AI Features and Outputs. The Software uses artificial intelligence, including third-party large language models, to generate responses, recommendations, summaries, voice output and other content ("Outputs"), and may take actions that Customer configures, such as looking up orders or calling connected tools. Customer acknowledges and agrees that:
(a) Outputs are generated probabilistically and may be inaccurate, incomplete, offensive or not unique, and other customers may receive similar Outputs. Customer is solely responsible for how its agents are configured, for the knowledge base content, instructions and other materials it supplies, and for any decisions Customer or its End Users make in reliance on Outputs;
(b) Customer shall not configure the Software to provide medical, legal, financial or other regulated professional advice, or to make decisions with legal or similarly significant effects on individuals, without appropriate human review;
(c) Customer shall not represent to End Users that they are interacting with a human when they are interacting with a Crossword agent, and shall provide any disclosure regarding the use of artificial intelligence required by applicable law; and
(d) where Customer enables agents to act within Customer's systems or Third-Party Systems, Customer is solely responsible for the permissions it grants and for all actions taken within them.
1.10 Third-Party Systems and Integrations. Customer may connect the Software to third-party products and services, such as e-commerce platforms, customer relationship management systems, helpdesks and messaging channels ("Third-Party Systems"). When Customer authorizes an integration, Customer authorizes Crossword to access and exchange data with that Third-Party System, and to permit Crossword agents to perform the actions Customer enables within it, on Customer's behalf. Customer represents and warrants that it shall only authorize such access for accounts it controls, and only to the extent permitted by the relevant Third-Party System provider. Customer's use of Third-Party Systems is governed solely by its agreements with their providers. Crossword makes no representation, warranty or endorsement regarding any Third-Party System, and shall not be liable or responsible for its availability, security, acts or omissions, or handling of any data Customer chooses to send to it.
2. Ownership
2.1 Crossword Technology. Customer acknowledges and agrees that as between Crossword and Customer, all right, title and interest in and to the Software (including the data, information, text, images, designs, sound, music, videos, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Software, other than Customer Data, as defined below), any related documentation, the Crossword Technology and all improvements and derivatives of the foregoing (including all trade secrets and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Crossword or its licensors or other providers, and the Agreement in no way conveys any right, title or interest in the Software or the Crossword Technology other than a limited right to use the Software in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos, except that Customer may identify that a Customer Property is "powered by Crossword" in accordance with Crossword's brand guidelines. Customer shall not remove any proprietary notices or legends in the Software code, any output thereof, or related documentation.
2.2 Customer Data. Crossword acknowledges and agrees that as between Customer and Crossword, Customer shall retain all of its right, title and interest in and to the Customer Data, and this Agreement in no way conveys to Crossword any right, title or interest in the Customer Data other than the limited right to use the Customer Data in accordance with the terms and conditions herein.
2.3 Outputs. As between Customer and Crossword, and subject to Customer's compliance with this Agreement, Customer owns the Outputs generated for Customer. Crossword does not claim ownership of Outputs. Nothing in this Section grants Customer any right in the Crossword Technology used to generate Outputs.
3. Fees; Payments; Taxes
3.1 Fees. In consideration of the provision of the Software hereunder, Customer shall pay Crossword the fees for Credits and any other fees set forth in the applicable Order (collectively, "Fees"). Unless otherwise provided in the Order: (a) Fees for a Prepaid Credit Order are due in full at the time of purchase; and (b) Fees for a Committed Order are invoiced monthly or annually in advance, as set forth in the Order, and are payable within thirty (30) days after receipt of the applicable invoice from Crossword. Fees under a Committed Order are payable for the full Term regardless of the Credits actually used.
3.2 Credits. "Credits" are units purchased under an Order that are consumed by Customer's use of the Software, including conversations, agent actions and other AI features, at the consumption rates set forth in the Order or, if none are stated, in Crossword's then-current rate card. Credits under a Prepaid Credit Order may be purchased at any time and expire six (6) months after the date of purchase . Credits under a Committed Order are made available over the Term of that Order as set forth in the Order and expire at the end of the then-current Term. Unused Credits do not roll over, have no cash value, are non-transferable and are non-refundable, including on expiration or termination of the Agreement or any Order. If Customer's available Credits under a Prepaid Credit Order are exhausted or expire, Crossword may, in its discretion and until Customer purchases additional Credits, (a) continue to provide the Software using lower-cost or less capable AI models, with reduced features or performance, or (b) pause or limit Customer's use of the features that consume Credits. Usage under a Committed Order in excess of the Credits made available under that Order will be charged at the overage rates set forth in the Order (or, if none are stated, at Crossword's then-current rates), invoiced monthly in arrears.
3.3 Price Changes. Crossword may change the price of Credits and the rates at which Credits are consumed. For Prepaid Credit Orders, price changes apply to Credits purchased after the change, and changes to consumption rates take effect thirty (30) days after Crossword provides Customer written notice thereof. For Committed Orders, the price of Credits and consumption rates in the Order apply for the then-current Term, and Crossword may change them for any Renewal Term by providing Customer written notice at least forty-five (45) days before the start of such Renewal Term, unless otherwise provided in the Order.
3.4 Taxes. All amounts due under any Order are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Support Services, the Software, or Customer's and its Users' access to and use of the Software. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Crossword's U.S. income), which may be invoiced by Crossword from time to time. Customer will indemnify, defend, and hold Crossword harmless from any such taxes, fines, or interest that Customer is responsible for under any Order or applicable law (except for taxes on Crossword's U.S. income or arising out of Crossword's failure to remit taxes paid to it by Customer to the applicable taxing authority).
3.5 Payment Method. Customer shall make all payments using the payment method set forth in the Order, without set off, withholding, or deduction of any kind. Where the Order provides for payment by credit card or other automatic payment method, Customer authorizes Crossword (or its designated third-party payment provider) to charge all Fees to that payment method when due, and shall keep its payment information accurate and current. Customer agrees to gross-up payments due to Crossword for any tax-related withholding or deduction required by applicable laws, such that Crossword is paid the net amount contemplated under the Order.
3.6 Late Payments. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. If any charge is rejected by Customer's bank or payment provider, Customer remains liable for the applicable Fees. Customer shall reimburse Crossword for all costs and expenses, including attorneys' fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
3.7 Shopify Billing. Where Customer connects a Shopify store to the Software and Shopify's terms require Fees for that store to be charged through Shopify's billing system, those Fees are charged through Shopify's billing system, Shopify's billing terms apply to those charges, and Sections 3.1, 3.5 and 3.6 apply only to the extent consistent with Shopify's billing system. All other Fees are invoiced or charged as set forth in Section 3.1 and the applicable Order. All other provisions of this Agreement continue to apply.
4. Term; Termination
4.1 Term. The term of each Committed Order shall commence on the Order Effective Date and, unless earlier terminated as set forth herein, shall continue for the period agreed in the applicable Order (the "Initial Term"); provided that the term shall thereafter automatically renew for successive periods as and if set forth in the Order (each, a "Renewal Term"), unless either Party provides the other Party at least thirty (30) days' advance written notice of its desire not to renew prior to the end of the then-current Term. Each Prepaid Credit Order shall commence on its Order Effective Date and continue until all Credits purchased under it have been consumed or have expired. The Initial Term, any Renewal Terms and the period of any Prepaid Credit Order may be collectively and individually referred to as the "Term" herein. This Agreement remains in effect for so long as any Order is in effect, and Customer may terminate this Agreement at any time when no Committed Order is in effect by written notice to Crossword, without refund of any unused Credits.
4.2 Termination for Breach. Either Party may terminate any or all Orders (and the Agreement) by written notice thereof to the other Party, if the other Party materially breaches the Agreement and does not cure such breach within thirty (30) days after written notice thereof.
4.3 Crossword Termination. Crossword may terminate any and all Orders (and the Agreement), or suspend or terminate Customer's access to the Software under any or all Orders, at any time, upon notice to Customer.
4.4 Effects of Termination; Survival. Upon any termination or expiration of an applicable Order (a) all rights granted to Customer hereunder shall terminate and Crossword shall no longer provide access to the Software to Customer or perform Support Services for Customer; and (b) Customer shall cease and cause its Users to cease using the Software and shall remove the Crossword widget and any Crossword code from Customer Properties. Any obligations that have accrued prior to termination or expiration of the Order, including the payment of Fees, shall survive such termination or expiration. In addition, the following Sections, as well as this Section and any other provisions herein which by their nature should reasonably survive, shall survive termination or expiration of the Order: Sections 2, 3, 4.5, 5, 6.3 and 7 through 11.
4.5 Customer Data on Termination. For thirty (30) days after termination or expiration of the Agreement, and provided Customer has paid all Fees due, Crossword will, upon Customer's written request to legal@crossword.ai, make available to Customer an export of the Customer Data in a standard format reasonably determined by Crossword, except for any Customer Data deleted earlier at the request of Customer or a Platform. Thereafter, Crossword shall have no obligation to maintain or provide any Customer Data and will delete it in accordance with the DPA, except as required by applicable law.
5. Customer Data
5.1 Data Generally. All data and information which Customer, any User or any End User inputs into, submits or transmits to the Software, including conversation content, End User information, knowledge base content, product catalogs, data synchronized from Customer's connected store and Third-Party Systems, and Outputs generated for Customer (the "Customer Data"), is stored in a private and secure fashion, and will not be used by Crossword except as permitted. Customer hereby grants to Crossword a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Customer Data solely in connection with providing the Software to Customer, performing its obligations and exercising its rights under the Agreement, and maintaining, improving and developing the Software, provided that Crossword will use Customer Data to train artificial intelligence and machine-learning models only as described in Section 5.6. In addition, Crossword may analyze Customer Data, and data or other content or information of other customers, to create aggregated or anonymized statistics or data that do not identify Customer or any individual, and Crossword may during and after the Term use and disclose such statistics or data in its discretion, subject to applicable laws and regulations. Except as specified otherwise in the Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer's sole responsibility.
5.2 Additional Customer Responsibilities. Customer is solely responsible for all Customer Data. Crossword does not guarantee the accuracy, integrity, quality, legality, reliability or appropriateness of Customer Data. Customer represents and warrants that it has all rights, consents and lawful bases necessary to submit the Customer Data to the Software and to permit Crossword to process it as described in this Agreement and the DPA. Customer shall not: (a) upload or otherwise create or make available to Crossword or the Software any (i) Customer Data that (A) is unlawful, illegal or that violates the rights of any third parties, or (B) it does not have a right to transmit or create due to any law, rule, regulation or other obligation, or (ii) material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (b) use, create, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (c) interfere with or disrupt the Software or servers or networks connected to the Software; (d) use the Software to send unsolicited marketing communications in breach of applicable law; or (e) violate any applicable law, rule or regulation, including those regarding export control or privacy.
5.3 Sensitive Data. The Software is not designed to process, and Customer shall not configure the Software to collect or submit, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, payment card data, government identification numbers, or special categories of personal data under applicable data protection law ("Sensitive Data"). Customer shall take reasonable steps to discourage End Users from submitting Sensitive Data. Crossword shall have no obligation or liability with respect to any Sensitive Data submitted to the Software.
5.4 End User Notices and Consent. Customer is the controller of personal data relating to its End Users. When Customer deploys the Crossword widget, agents or tracking scripts on Customer Properties, Customer is solely responsible for: (a) providing End Users with a privacy notice that discloses Customer's use of third-party artificial intelligence service providers; (b) obtaining any consent required by applicable law for cookies, local storage, tracking and personalization, before the relevant Crossword features are activated; (c) honoring End Users' data subject requests, with Crossword's assistance as set forth in the DPA; and (d) configuring retention, memory and personalization settings appropriately for its use case. Customer shall not remove, obscure or alter any notice that Crossword displays to End Users within the Crossword widget, including notices that End Users are interacting with artificial intelligence and that information about End Users may be de-identified and used by Crossword to develop and train its artificial intelligence models.
5.5 Data Processing Addendum. To the extent Crossword processes personal data on behalf of Customer, the Crossword Data Processing Addendum available at crossword.ai/legal/dpa (the "DPA"), which is incorporated into this Agreement by reference, shall apply. Crossword's collection and use of personal data of Users and other Customer contacts for its own purposes is described in the Crossword Privacy Policy available at crossword.ai/legal/privacy-policy.
5.6 De-identified Data and AI Training. Crossword may de-identify Customer Data so that it does not identify, and cannot reasonably be used to identify, any individual ("De-identified Data"), and may use De-identified Data during and after the Term to develop, improve and train Crossword's products, services and artificial intelligence and machine-learning models, which may be made available to other customers. Crossword will de-identify Customer Data before using it to train any such model, will maintain De-identified Data in de-identified form, and will not attempt to re-identify it, except as permitted by applicable law. Customer may opt out of the use of its Customer Data to train Crossword's models at any time by written notice to legal@crossword.ai (email sufficient). Crossword will give effect to an opt-out within thirty (30) days, after which it will not create further De-identified Data from Customer's Customer Data for model training. An opt-out does not apply to De-identified Data created, or models trained, before it takes effect. De-identified Data and models trained using it are not Customer Data or Confidential Information of Customer.
6. Representations and Warranties; Disclaimer
6.1 Crossword Limited Warranty. Crossword warrants that it will provide the Software in a competent and workmanlike manner. Crossword does not warrant that it will be able to correct all reported defects or that use of the Software will be uninterrupted or error free. Crossword makes no warranty regarding features or services provided by any third parties, including AI model providers and Third-Party Systems, or regarding any Outputs. Crossword retains the right to modify the Software, including the Crossword Technology and the AI models used, in its sole discretion; provided that doing so does not have a material adverse impact on the Software hereunder. Customer's sole remedy for Crossword's breach of the warranty in this paragraph shall be that Crossword shall remedy the applicable error, or if Crossword is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the Fees paid for the Credits consumed during the period in which the breach of warranty occurred.
6.2 Mutual Authority. Each Party represents and warrants that it has the full right, power and authority to enter into and perform this Agreement.
6.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, CROSSWORD MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SOFTWARE, OUTPUTS OR SUPPORT SERVICES (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, OR (D) AS TO THE ACCURACY, COMPLETENESS, RELIABILITY OR SUITABILITY OF ANY OUTPUTS OR OTHER INFORMATION OBTAINED FROM THE SOFTWARE.
7. Limitations of Liability
7.1 Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, A PARTY'S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE, THE OUTPUTS, THE SUPPORT SERVICES, ANY ORDER, OR THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CROSSWORD DURING THE PRIOR TWELVE (12) MONTHS UNDER THE ORDER GIVING RISE TO THE ACTION.
7.2 Disclaimer of Indirect Damages. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (WHICH MAY INCLUDE LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SOFTWARE, THE OUTPUTS, THE SUPPORT SERVICES, ANY ORDER, OR THE AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 Exceptions. THE DAMAGES CAP AND DISCLAIMER IN SECTIONS 7.1 AND 7.2 SHALL NOT APPLY TO EITHER PARTY'S WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY OBLIGATIONS (EXCEPT WITH RESPECT TO CUSTOMER DATA, INCLUDING ANY SECURITY INCIDENT AFFECTING CUSTOMER DATA, TO WHICH SECTIONS 7.1 AND 7.2 APPLY), EITHER PARTY'S VIOLATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, CUSTOMER'S BREACH OF SECTION 1.3, 5.2 OR 5.3, CUSTOMER'S OBLIGATION TO PAY FEES, OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS.
7.4 Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT CROSSWORD HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
8. Indemnification
8.1 Crossword Indemnification. Crossword shall defend, indemnify and hold harmless Customer and its directors, officers, employees and agents ("Customer Indemnified Parties") from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys' fees and court costs) (collectively, "Claims") to the extent based on any claim that the Software infringes, misappropriates or otherwise violates (collectively, "Infringes" or "Infringement") any third-party intellectual property or proprietary right.
8.2 Customer Indemnification. Customer shall defend, indemnify and hold harmless Crossword, its affiliates and its and their directors, officers, employees, agents and providers ("Crossword Indemnified Parties") from and against any Claims to the extent arising out of or relating to: (a) Customer's or any User's or End User's use of the Software in breach of the Agreement or violation of any applicable law or regulation; (b) Customer's relationship or agreements with its Users or End Users, including any failure to provide notices or obtain consents required under Section 5.4; (c) the Customer Data, including any claim that Customer lacked the rights or consents required under Section 5.2; (d) Customer's use or publication of Outputs, its agent configurations, and actions it enables agents to take; or (e) Customer's use of Third-Party Systems.
8.3 Indemnification Process. As conditions of the indemnification obligations in Sections 8.1 and 8.2 above: (a) the applicable Customer Indemnified Party or Crossword Indemnified Party (the "Indemnitee") will provide the indemnifying Party (the "Indemnitor") with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor's indemnification obligations except to the extent it is prejudiced thereby); (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim (provided that, (i) the Indemnitee may participate therein using counsel of its own choice, at its own expense, and (ii) the Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party, not unreasonably withheld); and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor's evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party.
8.4 Exclusions. Crossword's obligations in Section 8.1 above shall not apply to any Claim to the extent arising out of or relating to (a) misuse of the Software (including any use not strictly in accordance with the documentation therefor, Crossword's instructions, and the Agreement), (b) any modification, alteration or conversion of the Software not created or approved in writing by Crossword, (c) any combination of the Software with any computer, hardware, software, service, data not intended for use with or customarily used with the Software, or anything else not provided by Crossword, but only to the extent such claim would not have arisen but for such combination, (d) Crossword's compliance with specifications or other requirements of Customer, (e) any third-party data or information or Customer Data, or (f) any Outputs, or any third-party AI model or Third-Party System. If the Software is or may be subject to a Claim of Infringement described in Section 8.1 above, Crossword may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Software as contemplated herein; or (ii) replace or modify the Software so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate the Agreement. Crossword's obligations in this Section 8 shall be Crossword's sole obligations, and Customer's sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Software.
9. Confidentiality
9.1 Definition. "Confidential Information" means information that is disclosed by either Party (the "Disclosing Party") to the other Party (the "Receiving Party") hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that "Confidential Information" shall not include any information that: (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party's possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of each Order (including pricing), the Software, any related documentation, and Crossword Technology shall be deemed Confidential Information of Crossword, and (ii) the Customer Data shall be deemed Confidential Information of Customer, in either case (i) or (ii), regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.
9.2 General Obligations. Each Party agrees that it will during the Term and thereafter: (a) not disclose the other Party's Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party's Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party's Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 9; and (d) protect all Confidential Information of the other Party from unauthorized use, access or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 9 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable); or (iii) Crossword from disclosing Confidential Information of Customer to its affiliates, hosting and AI model providers and other sub-processors to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement.
9.3 Return or Destruction. Except as otherwise expressly provided in the Agreement (including Section 4.5 and the DPA with respect to Customer Data), the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party's Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party's Confidential Information solely for the purposes of tracking Receiving Party's rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party's Confidential Information solely to the extent required by law or by applicable professional standards which require such retention, (c) Receiving Party may retain copies of Disclosing Party's Confidential Information in accordance with its backup and records retention policies, and (d) Receiving Party may retain Disclosing Party's Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise its rights or perform its obligations under this Agreement that survive such termination or expiration.
9.4 Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer or any User at any time provides Crossword with any feedback or suggestions regarding the Software, including potential improvements or changes thereto (collectively, "Feedback"), the Feedback shall not be considered Confidential Information of Customer, and Crossword shall be free to use, disclose and otherwise exploit in any manner, the Feedback for any purpose and without compensation to Customer.
10. Platform-Specific Terms
10.1 Platforms. Customer may install or connect the Software through a third-party commerce platform or app marketplace (a "Platform"), such as the Shopify App Store. This Section 10 applies, in addition to the rest of this Agreement, when Customer uses the Software through that Platform, and prevails over the rest of this Agreement for that Platform if they conflict. Customer's use of the Platform itself is governed by Customer's agreement with the Platform provider.
10.2 Shopify. This Section applies when Customer installs the Crossword app on a Shopify store.
(a) Shopify is not a party. This Agreement is between Customer and Crossword. Shopify and its affiliates are not parties to this Agreement and have no responsibility or liability for the Software. Customer shall comply with the Shopify terms that apply to its store and to the apps it installs.
(b) Acceptance. Customer accepts this Agreement when it installs the Crossword app and continues past the acceptance notice shown when it connects its store.
(c) Data the app reads. The Crossword app has read-only access to Customer's store. It reads products, prices and images; inventory levels; orders, including order history where Shopify approves it and the shipping addresses on those orders; and customer names and email addresses. Crossword uses this data to provide the Software to Customer and, with Customer's consent under Section 10.2(g), to develop, improve and train Crossword's artificial intelligence and machine-learning models as described in Section 5.6. Crossword does not write to or change Customer's store.
(d) Uninstalling. Uninstalling the Crossword app ends Crossword's access to the store immediately and ends Customer's access to the Software for that store. Uninstalling also starts deletion of the store's data under Section 10.2(e), which may occur before the export period in Section 4.5 ends. Customer should request any export of Customer Data before uninstalling; Crossword cannot provide an export once the data has been deleted.
(e) Privacy requests from Shopify. Crossword acts on the privacy requests Shopify sends for Customer's store: (i) when a customer of Customer requests their data, Crossword compiles that customer's data and provides it to Customer within thirty (30) days of Shopify's notice; (ii) when a customer of Customer requests deletion, Crossword deletes that customer's data within thirty (30) days; and (iii) after Customer uninstalls, Crossword deletes the store's data within thirty (30) days of Shopify's store deletion request. These timelines apply notwithstanding Section 4.5.
(f) Customer's customers. Customer remains the controller of its customers' personal data. If a customer of Customer contacts Crossword about their data, Crossword will refer them to Customer.
(g) Consent to AI training. By installing the Crossword app and accepting this Agreement, Customer gives its prior written consent, including for purposes of Shopify's API License and Terms of Use and Shopify Partner Program Agreement, to Crossword using the Merchant Data and Customer Data (as those terms are defined by Shopify) from Customer's Shopify store, including anonymous, aggregate and derived forms of that data, to create, develop, train, fine-tune and improve Crossword's artificial intelligence and machine-learning models. This consent applies whether or not Customer pays for the Software through Shopify's billing system, is given when Customer accepts this Agreement (and may also be recorded in an Order), and continues for data collected while the Crossword app is installed until Customer opts out under Section 5.6. Crossword will use that data for these purposes only as described in Section 5.6.
11. Miscellaneous
11.1 Hosting and AI Providers. Customer acknowledges that the Software is hosted by third-party hosting providers and uses third-party AI model providers (together, the "Hosting Providers"). Crossword may change its Hosting Providers at any time. Customer's use of the Software is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of the Agreement, Crossword shall not be liable for any problems, failures, defects or errors with the Software to the extent caused by the Hosting Providers. Customer acknowledges that the Fees payable for the Software reflect the fact that Crossword is not responsible for the acts and omissions of the Hosting Providers. Nothing in this Section limits Crossword's obligations with respect to sub-processors under the DPA.
11.2 Assignment. Customer may not assign or transfer the Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Crossword, and any change of control of Customer shall be deemed an assignment. Crossword may assign or transfer the Agreement, any Order, or any of its rights or obligations hereunder, in whole or in part, without the consent of Customer: (a) to any Affiliate; (b) to any successor to all or any part of the business or product line operated under the Crossword name, including any newly formed entity to which that business is transferred in a reorganization, spin-off, contribution or similar transaction; or (c) in connection with a merger, consolidation, sale of equity, or sale or transfer of all or substantially all of its assets or of the assets relating to the Crossword business. Upon any such assignment and the assignee's assumption of Crossword's obligations, Crossword shall be released from all obligations arising after the effective date of the assignment, and Customer shall execute any documents reasonably requested by Crossword to give effect to the assignment. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with Crossword. Any purported assignment or delegation in violation of this paragraph is null and void. The Agreement will bind and inure to the benefit of each Party's successors and permitted assigns.
11.3 Entire Agreement. The Agreement (including any Orders, the DPA, and any other exhibits or data protection agreement referencing this Agreement) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. Any terms contained in a Customer purchase order or other Customer document are rejected and of no effect.
11.4 Notice. Customer agrees that an email to Customer's email address on record, or a notice posted in the Crossword dashboard, will constitute formal notice under this Agreement. Customer shall send legal notices to Crossword by email to legal@crossword.ai, with a copy to CometChat Inc., 1580 North Logan Street, Ste 660, PMB 43373, Denver, CO 80203, USA.
11.5 Force Majeure. Crossword shall not be liable or responsible to Customer, nor be considered to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any provision of the Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Crossword, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, failures of hosting or AI model providers, telecommunication breakdown or power outage.
11.6 Publicity. Crossword may use Customer's name and logo on client lists published on Crossword's website and in marketing materials. Crossword may announce the relationship hereunder in a press release.
11.7 Governing Law and Disputes. The Agreement, the interpretation hereof and all disputes arising out of or relating to the Agreement, shall be governed by the laws of the State of Delaware, without regard to any conflicts of laws principles that would apply another law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Customer hereby consents to the non-exclusive jurisdiction and venue in any federal or state court located within the State of Colorado, and shall not bring any suit, claim or other cause of action except in a court located within the State of Colorado.
11.8 Injunctive Relief. Each Party acknowledges that its breach of any intellectual property or confidentiality obligations or restrictions herein (including any limitations or restrictions on use of the Software) will cause substantial harm to the other Party that could not be remedied by payment of damages alone. Accordingly, the other Party will be entitled to seek injunctive relief or other equitable relief, for any such breach, without any requirement to post bond, in any court of competent jurisdiction.
11.9 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.10 Waiver. No waiver by either Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
11.11 Severability. If any provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement or invalidate or render unenforceable such provision in any other jurisdiction; provided that, the Parties shall negotiate in good faith potential modifications to the Agreement to most closely reflect their original intent for the invalid, illegal or unenforceable provision.
11.12 Modifications. Crossword may modify or supplement the terms and conditions in the Agreement consistent with how Crossword treats its other customers and will endeavor to provide Customer notice of such modifications. If Customer objects to such modification, to the extent the modification is a material change and degrades Customer's rights under the Agreement, Customer may terminate the Agreement upon thirty (30) days' notice to Crossword.
11.13 Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
11.14 Compliance with Laws and Regulations. Customer will comply with all laws and regulations applicable to its activities under or in connection with this Agreement, including data protection, consumer protection, artificial intelligence and electronic marketing laws, and U.S. sanctions laws and export control laws, including relevant regulations and executive orders administered by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC). Customer represents that it is not located in, organized under the laws of, or ordinarily resident in a country or region subject to comprehensive U.S. sanctions, and is not on any U.S. government restricted-party list. Crossword may suspend or terminate access to the Software immediately upon any violation of this Section and shall have no liability for Customer's non-compliance.
11.15 Pilots. Crossword may make the Software available to Customer for a pilot, trial or evaluation free of charge or at a reduced fee, as set forth in an Order or as otherwise agreed in writing (email sufficient) (a "Pilot"). If Crossword and Customer have agreed separate pilot terms for the Pilot, those terms govern the Pilot. Otherwise, this Agreement governs the Pilot, with the following modifications: (a) the Pilot continues for the period agreed by the Parties or, if none is agreed, for thirty (30) days, and either Party may end it at any time on notice (email sufficient); (b) the Software is provided during the Pilot "AS IS", the warranty in Section 6.1, Crossword's indemnification obligations in Section 8.1 and any service level or support commitments do not apply, and Crossword's total liability arising out of or relating to the Pilot shall not exceed the greater of the Fees paid by Customer for the Pilot and one hundred U.S. dollars (US $100); (c) Crossword may limit usage during the Pilot, including the AI models and volume of usage available; and (d) neither Party is obligated to enter into any further Order, and Customer's access to the Software ends at the end of the Pilot unless Customer places an Order.