Terms and Conditions of Service

Last Update Date: September 19, 2024

These Terms of Service (“Terms”) are a legal agreement between you (“you” or “your”) and Selector Software, Inc. (“Selector Software,” “we,” “us” or “our”) and govern your use of and access to Selector Software’s Selector AI Platform (the “Services”). By using or accessing the Services, or by registering an account to use or access the Services, you accept and agree to be bound by these Terms. If you’re using the Services for a business or entity, you represent and warrant that the business or entity accepts these Terms, and that you have authority to bind the business or entity to these Terms.

Selector Software Services

You agree to use the Services in accordance with the Order Form (or similar document) executed by both parties or according to the terms of the applicable trial, evaluation or pilot program. You may use our Services only as permitted in these Terms, and you consent to our Privacy Policy at https://www.selector.ai/privacy/, which is incorporated by reference. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Services solely for your own internal business purposes. You acknowledge and agree Selector Software is the exclusive owner of the Selector Software Products and Services, including, without limitation, any and all intellectual property or proprietary rights therein.

Your Obligations

Restrictions on Use

You will not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Services or any of our technology or content available to any third party in any way or use the Services as a managed service provider; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, including by uploading or otherwise disseminating viruses or other malicious code; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; (iv) copy any ideas, features, functions or graphics of the Services or any content other than for your own internal use; (v) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or our technology, (vi) use the Services for any illegal purpose, or in violation of any local, state, national, or international law; (vii) use the Services to violate, or encourage others to violate, the rights of third parties; (viii) import, transmit or collect any of Your Data or other content that is unlawful, defamatory, libelous, or invasive of privacy; or (ix) perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, or accessing the Service accounts of others without permission.

Responsibilities

You are responsible for all activity resulting from your authorized use of Selector Software services, including the actions of all persons who were provided with a username and password by you or for you. You will: (i) notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another Selector Software user or provide false identity information to gain access to or use the Services; (iii) suspend all user accounts for individuals who are no longer authorized to access those accounts; and (iv) generally, comply with any instructions concerning access to or use of the Services that we may give from time to time.

Your Warranties

You represent and warrant that: (1) you have all rights, power, authority, and consents necessary to, and to authorize Selector Software and users of the Services to, collect, use, process, and distribute Your Data (as defined below) as contemplated by these Terms, (2) you will comply with all applicable laws and regulations, and (3) Your Data does not contain Sensitive Information.

Your Data

“Your Data” means any data of yours that is transmitted to or through Selector Software’s technology for the purpose of providing the Services. Your Data does not include aggregated measures of the Services’ performance or metadata associated solely with your use of the Services. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use Your Data, and Selector Software will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Your Data. You recognize and agree that: (a) we have no liability for any failure to provide any special protections to sensitive data, including but not limited to, financial account numbers, login credentials, government-issued identification numbers, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), nonpublic personal information as defined under the Gramm-Leach-Bliley Act (GLBA), information protected under the Fair Credit Reporting Act, special categories of personal data listed in Article 9 §1 of the EU General Data Protection Regulation, 2016/679, or data that requires compliance with PCI DSS security standards (collectively, “Sensitive Information”), and (b) our technology is not intended for management or protection of Sensitive Information and may not provide adequate or legally required security for Sensitive Information. We store and process Your Data and provide the Services through a third party’s hosting services in the United States. If you or your personnel are in the European Economic Area, or in any other jurisdiction that regulates the transfer of personal information outside that jurisdiction, then you hereby grant us your explicit and unambiguous consent to transfer any personal information contained in Your Data to the United States for the purposes described in these Terms.

Intellectual Property

Our Intellectual Property

Selector Software retains all right, title and interest, including all related intellectual property rights (including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights) in and to the Services, our content, and our technology. Portions of the Services and our technology, including the source code, constitute or contain trade secrets and other intellectual property rights of Selector Software and our licensors. The Selector Software name, Selector Software logo, and the product names associated with the Services are trademarks of Selector Software or third parties, and no right or license is granted to use them. These Terms do not grant you any intellectual property rights in the Services or our technology, and we reserve all rights not expressly granted in these Terms.

License to Your Data

You grant us a worldwide, non-exclusive, royalty-free license to reproduce, distribute, modify, and adapt Your Data solely for the purpose of providing the Services and subject to these Terms. You authorize us to access certain third-party tools that you choose to integrate into the Services, and to store and process data obtained from such tools, solely for us to provide the Services. We will not share Your Data with any third party except to operate the Services or if required by applicable law, rules or regulations.

Confidentiality

Either party may provide the other party with confidential or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should know is the Confidential Information of the disclosing party, will be considered Confidential Information. Your Confidential Information includes Your Data; Selector Software’s Confidential Information includes the Services and our technology; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. The receiving party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party or in accordance with these Terms. The receiving party will only use the Confidential Information for the purposes contemplated under these Terms. The obligations in this Section will not apply to any information that: (a) is made generally available to the public without breach of any obligation owed to the disclosing party, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without breach of any obligation owed to the disclosing party, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party will destroy all disclosing party’s Confidential Information in its possession. Except as expressly set forth in these Terms, no license or other rights to Confidential Information are granted or implied hereby by either party.

Termination and Modification

Service Termination

We may terminate this Agreement prior to the end of the Service Period in the event of a material breach of this Agreement by you.

In addition, we may terminate this Agreement immediately upon notice to Customer

1. If customer breaches any sections of our Privacy Policy, Restrictions on Use, or Intellectual Property
2. In order to comply with applicable laws or regulations
3. If customer defaults in the timely payment of any amounts due to Selector as part of a Commercial Agreement

Effect of Expiration or Service Termination

Upon termination, your access to the Services will be disabled and all of Your Data will be deleted.  Once deleted, this information cannot be recovered. All sections of these Terms that by their nature should survive termination will survive termination, including without limitation Your Data, Our Intellectual Property, Confidentiality, Indemnification, No Warranty, Limitation of Liability, and Miscellaneous.

Modification

We may modify these Terms from time to time, and we will post the most current version on our site. Regardless of whether Selector Software has provided you notice, your continued use of the Products and Service following Selector Software’s notice or posting of changed Terms will constitute your acceptance of such changes.

We reserve the right to enhance, upgrade, improve, or modify features of our Services as we deem appropriate and in our discretion. It is your responsibility to check regularly for changes to the Terms and ensure that any contact, billing or payment information you provide to Selector Software is updated and correct.

Indemnification

To the maximum extent permitted by law, each party agrees to indemnify, defend, and hold harmless the other party and their employees, directors, agents, affiliates and representatives from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) a breach of your representations, warranties, or obligations set forth in these Terms; (b) a wrongful or improper use or delivery or provision of the Services; (c) a violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Your Data; and (f) any other party’s access or use of the Services with your username and password.

No Warranties

THE SERVICE AND THE PRODUCT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER THE TERMS, SELECTOR SOFTWARE’S ORDER FORM, NOR ANY DOCUMENTATION FURNISHED UNDER THEM ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS AND SERVICES IS WITH YOU. SHOULD THE PRODUCTS AND SERVICES PROVE INADEQUATE IN ANY WAY, YOU AND NOT SELECTOR SOFTWARE ASSUME THE ENTIRE COST OF ANY COSTS OR DAMAGES INCURRED BY YOU. SELECTOR SOFTWARE DOES NOT WARRANT THAT YOU WILL HAVE UNINTERRUPTED OR ERROR FREE USE OF THE PRODUCTS AND SERVICES, THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN SECURE OR UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME, OR THAT THE PRODUCTS AND SERVICES WILL PREVENT FROM OCCURRING THAT WHICH THEY ARE DESIGNED TO PREVENT. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED, RECEIVED OR SUBMITTED THROUGH THE PRODUCTS AND SERVICES ARE AT YOUR SOLE RISK AND THAT SELECTOR SOFTWARE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING ANY DATA, PERSONAL COMPUTER EQUIPMENT OR STORAGE MEDIA). SELECTOR SOFTWARE IS NOT RESPONSIBLE FOR THE CONTENT OF DATA, INFORMATION OR ATTACHMENTS WHICH ARE MONITORED THROUGH SELECTOR SOFTWARE’S PRODUCTS AND SERVICES.

Limitation of Liability

UNDER NO CIRCUMSTANCES WHATSOEVER WILL SELECTOR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE PRODUCTS AND SERVICES, OR RELIANCE ON ANY OF THE PRODUCTS AND SERVICES OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY SELECTOR SOFTWARE. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, SELECTOR SOFTWARE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY OTHER PARTY FOR THE ACCURACY, SECURITY, TIMELINESS, COMPLETENESS OR CONTINUED AVAILABILITY OF THE PRODUCTS AND SERVICES OR ANY PART THEREOF, INCLUDING USE FOR URGENT, CRITICAL OR EMERGENCY COMMUNICATIONS OR IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR PRIVATE INFORMATION. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE ANY OR ALL OF THE PRODUCTS AND SERVICES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH ANY OF THE PRODUCTS AND SERVICES. THE LIMITATIONS IN THIS SECTION ARE COMPREHENSIVE AND THE EXAMPLES GIVEN ARE NOT EXHAUSTIVE. THE LIMITATIONS IN THIS SECTION ARE SEPARATE AND INDEPENDENT OF ANY OTHER LIMITATIONS IN THIS AGREEMENT AND SHALL NOT FAIL IF SUCH OTHER LIMITATION OR REMEDY FAILS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

Miscellaneous

Entire Agreement and Conflict

These Terms constitute the entire agreement between you and Selector Software regarding the subject matter of these Terms and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. In the event of a conflict between these Terms and another agreement (such as an Order Form) that has been signed by both you and Selector Software, the agreement signed by both parties will control.

Governing Law and Dispute Resolution

These Terms will be exclusively governed by the laws of the State of California, without regard to conflict of law principles.  Any controversy or claim arising out of or relating to these Terms, their enforcement, arbitrability or interpretation will be submitted to final and binding arbitration, to be held in Santa Clara County, California, before a single arbitrator who will be a retired judge, in accordance with California Code of Civil Procedure §§ 1280 et seq.  The arbitrator will be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association.  The arbitration will be a confidential proceeding, closed to the general public.  The arbitrator will issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  The parties will share equally in payment of the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorneys’ fees and other expenses to the same extent as if the matter were being heard in court).

ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED.

Waiver, Severability and Assignment

Our failure or delay to enforce any provision of these Terms is not a waiver of our right to do so later. If any provision of these Terms is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign these Terms or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign these Terms or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services.

Feedback

You grant us a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display in any form any suggestions, ideas, comments, or questions that you submit to us.

Export

The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You will not permit access to or use of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

Assignment

Neither Party may assign these Terms without the prior consent of the other Party.

Notices

Any notices or communications under these Terms to you will be addressed to the electronic address specified in your Selector Software Order Form, as you may update such information from time to time, and will be deemed delivered immediately upon sending in the case of electronic mail to info@selector.ai