Effective: June 1, 2025
This Software Services Agreement (the “Agreement”) is entered into between Otter.ai, Inc. (“Otter”) and Customer, and governs Customer’s access to and use of Otter offerings provided under enterprise plans. Capitalized terms used but not defined herein are defined in Exhibit A.
By accepting this Agreement as part of an Order, you agree to this Agreement on behalf of the entity for which you are acting (such as an employer) (“Customer”). You represent and warrant that you have full legal authority to bind Customer to this Agreement, and confirm Customer’s agreement to be party to this binding contract. If you do not have the authority to bind Customer or do not agree with the terms of this Agreement, you (and Customer) are not authorized to access or use the Otter Platform.
This Agreement governs use of the Otter Platform by enterprise customers. Use of the Otter Platform for individuals and non-enterprise customers is governed by the Terms of Service at https://otter.ai/terms-of-service.
1.1. Access to the Otter Platform. Subject to the terms and conditions of this Agreement, Otter hereby grants Customer a limited, non-exclusive, non-transferable (subject to Section 9.6), non-sublicensable right, during the Order Term, for Authorized Users to access and use the Otter Platform in connection with Customer’s own business purposes.
1.2. Data Processing Addendum. The data processing addendum set forth as Appendix 1 through 6 of the Otter Terms of Service at https://otter.ai/terms-of-service is hereby incorporated by reference.
2.1. Use Restrictions. Except as otherwise expressly authorized in this Agreement, Customer will not, and will not encourage or assist third parties to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Otter Platform (except to the extent such a restriction is impermissible under applicable law); (ii) copy, modify, create derivative works of, or remove proprietary notices from the Otter Platform; or (iii) use the Otter Platform for personal or other non-commercial purposes.
2.2. Account Management.
(a) As part of the registration process, Customer will appoint one or more administrative users for Customer’s Otter account. Each administrative user has the authority to manage Customer’s Otter account, add or remove Authorized Users, approve purchases, and otherwise act on behalf of Customer for purposes relating to the Otter Platform and this Agreement.
(b) Customer may enable Authorized Users to access and use the Otter Platform in accordance with the Documentation and any limitations in Customer’s Order Form. Each Authorized User’s account is personal to the Authorized User to which it is issued. Account credentials may not be shared or used by anyone other than the individual to whom they were provisioned. Customer is responsible for its Authorized Users’ compliance with this Agreement, and all activities of its Authorized Users.
(c) Customer is responsible for providing accurate and complete account information (including the list of domains and/or Otter accounts owned or controlled by Customer for purposes of domain capture or migrations, if applicable) and maintaining the accuracy and completeness of such information. Customer is responsible for maintaining control over its Authorized Users’ accounts, including the confidentiality of usernames and passwords. Otter supports login using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Otter Platform. Otter will not be responsible for any damages, losses, or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses, or liability would have been prevented by the use of 2FA.
2.3 Customer Content. Customer authorizes Otter and its service providers to use Customer Content for the sole purpose of providing the Otter Platform and performing the activities contemplated by this Agreement (such as maintaining, securing, debugging, and otherwise performing quality control for the Otter Platform).
2.4. Feedback. Customer may voluntarily provide Otter feedback, comments, or suggestions concerning the Otter Platform or other services provided by Otter (collectively, “Feedback”). To the extent Customer provides Feedback, Customer hereby grants Otter the right to use such Feedback to maintain, improve, and enhance Otter’s products and services.
2.5. Usage Data. Otter will have the right to collect and analyze data and other information relating to the access, use, and performance of the Otter Platform (“Usage Data”) and Otter will be free (during and after the Order Term) to use Usage Data in de-identified and aggregated form to maintain, improve, and enhance Otter’s products or services. Examples of Usage Data include technical logs, metadata, telemetry data, and usage information about Customer Content, such as how many times it is accessed. For clarity, Usage Data excludes Customer Content itself.
2.6. Reservation of Rights. As between the parties, Otter owns all right, title, and interest in the Otter Platform, and Customer owns all right, title, and interest in the Customer Content. Except as expressly set forth in this Agreement, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under this Agreement.
2.7. Recording Consent Laws. The Otter Platform may provide a feature that allows Customer to record individual conversations and/or upload recorded conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by location. Customer acknowledges and agrees that it is solely responsible for providing any notices to, and obtaining consent from, individuals in connection with any recordings as required under applicable law.
2.8. Security Program. Otter will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) protect the Otter services and Customer Data against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through regular risk assessments and testing. As part of the Otter information security program, Otter will: (i) implement and enforce policies related to electronic, network, and physical monitoring and data storage, transfer, and access; (ii) deploy production infrastructure behind VPNs where possible; (iii) require multi-factor authentication for employees; (iv) configure network security, firewalls, accounts, and resources for least-privilege access; (v) maintain a logging and incident response process; (vi) maintain corrective action plans to respond to potential security threats; and (vi) conduct periodic reviews of Otter security and the adequacy of its information security program as aligned to industry best practices and Otter’s own policies and procedures.
3.1. Fees. Customer will pay Otter all fees described in an Order in accordance with the terms therein. Unless otherwise specified herein or in an Order, (a) all fees are stated and solely payable in U.S. Dollars, (b) payment obligations are non-cancelable and not subject to setoff, (c) fees paid are non-refundable, and (d) quantities purchased cannot be decreased during the relevant Order Term. Customer is solely responsible for any bank fees, interest charges, finance charges, overdraft charges, and any other fees Customer incurs as a result of the charges billed by Otter. If the Order automatically renews, Otter may change the fees applicable to a renewal by providing Customer at least 45 days’ written notice of the new fees before the end of the then-current Order Term. For clarity, any change in fees will not apply to the then-current Order Term.
3.2. Payment. Unless otherwise specified in an Order or this Section, Customer will be invoiced annually in advance, with full payment due 30 days from the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event that Customer fails to pay the full amount owed under an Order, Otter may limit Customer’s access to the Otter Platform, in addition to any other rights or remedies Otter may have.
3.3. Taxes. Fees do not include taxes. Each party is responsible for the payment of all taxes (including any interest and penalties) in connection with this Agreement that are imposed on that party by law. For Customer, such taxes may include sales/use, gross receipts, value-added, GST, personal property, excise, consumption, and other similar taxes or duties. Each party will be responsible for its own income taxes, employment taxes, and real property taxes.
3.4. Withholding. All payments made by Customer to Otter under this Agreement will exclude any deduction or withholding. If any such deduction or withholding (including cross-border withholding taxes) is required by law, Customer will pay such additional amounts as are necessary so that the net amount received by Otter after such deduction or withholding will be equal to the full amount that Otter would have received if no deduction or withholding had been required. Each party will use commercially reasonable efforts to work with the other party to help obtain, reduce, or eliminate any necessary withholding, deduction, or royalty tax exemptions where applicable.
3.5. Additional Subscriptions. The services may be configured to allow Administrators or Authorized Users to purchase additional subscriptions or quantities of Otter services. Customer is responsible for understanding the settings and controls of the Otter services for purchasing additional Otter services. Otter will charge Customer the applicable pro-rated amount for additional Otter services for the remainder of the then-current Order Term based on Customer’s then-current price unless otherwise set forth on the Order Form.
4.1. Confidential Information. Each party (the “Discloser”) has disclosed or may disclose proprietary or non-public business, technical, financial, or other information in anticipation of this Agreement or during the term of this Agreement (“Confidential Information”) to the other party (the “Recipient”). Confidential Information of Otter expressly includes non-public information regarding features, functionality, and performance of the Otter Platform, and Confidential Information of the Customer expressly includes Customer Content. However, Confidential Information excludes any information that: (a) is or becomes generally available to the public without action or omission by Recipient; (b) was in the Recipient’s possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to the Recipient without restriction by a third party; or (d) was independently developed by Recipient without use of or reference to any Confidential Information of the Discloser.
4.2. Obligations. The Recipient will use the Discloser’s Confidential Information only to exercise its rights and fulfill its obligations under this Agreement, including, in Otter’s case, to provide the Otter Platform to Customer. The Recipient will use reasonable care to protect against disclosure of the Discloser’s Confidential Information to parties other than the Recipient’s employees, contractors, Affiliates, agents, or professional advisors (“Representatives”) who need to know it and who have a legal obligation to keep it confidential. The Recipient will ensure that its Representatives are subject to confidentiality obligations that are no less restrictive than those herein. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information: (a) if directed by Discloser; or (b) to the extent required by applicable legal process, provided that the Recipient uses commercially reasonable efforts to (i) promptly notify the Discloser in advance, to the extent permitted by law and (ii) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. With respect to each Order, the obligations set forth herein will survive for the duration of the Order Term and five years following the expiration or termination of such Order.
5.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; (b) the execution, delivery, and performance of this Agreement by the executing party does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound or require authorization or approval from any third party; and (c) it will perform its rights and obligations under this Agreement in accordance with applicable law.
5.2. Otter Warranties. Otter represents and warrants to Customer during the applicable Order Term that: (a) Otter will provide access to the Otter Platform and any applicable support services in substantive conformity with the Documentation; and (b) Otter will employ applicable industry standard measures to protect the Otter Platform, in the form provided to Customer by Otter, against software viruses, Trojan horses, worms, or other similar malicious programs or code.
5.3. DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, THE PARTIES MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO THIS AGREEMENT. OTTER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NON-OTTER RESOURCES ARE PROVIDED BY THIRD PARTIES, NOT OTTER, AND ANY USE OF NON-OTTER RESOURCES IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER. OTTER DOES NOT WARRANT OR SUPPORT, AND WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY OF ANY KIND FOR, NON-OTTER RESOURCES. WITH RESPECT TO AI FEATURES, CUSTOMER ACKNOWLEDGES AND AGREES THAT: (I) CUSTOMER IS RESPONSIBLE FOR ALL INPUTS SUBMITTED TO THE OTTER PLATFORM, AND BY SUBMITTING INPUTS TO THE OTTER PLATFORM, CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS ALL RIGHTS, LICENSES, AND PERMISSIONS THAT ARE NECESSARY FOR OTTER TO PROCESS THE INPUTS AND TO PROVIDE THE SERVICE TO CUSTOMER; AND (II) OUTPUTS MAY BE INACCURATE, INAPPROPRIATE, FALSE, INCOMPLETE, OR BIASED, AND MAY NOT REFLECT OTTER’S VIEWS. CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING REASONABLE PRACTICES, INCLUDING HUMAN OVERSIGHT, TO ENSURE THAT OUTPUTS ARE CORRECT AND COMPLETE AND TO GUARD AGAINST THE OUTPUTS BEING USED IN AN UNSUITABLE OR UNLAWFUL WAY, OR IN VIOLATION OF THE RIGHTS OF OTHERS. CUSTOMER SHOULD NOT RELY ON AI OUTPUTS WITHOUT INDEPENDENTLY CONFIRMING THEIR ACCURACY.
6.1. Indemnification by Otter.
(a) Otter will defend Customer from any third party claim, action, suit, or demand (a “Claim”) based on an allegation that the Otter Platform violates, infringes, or misappropriates any third-party copyright, patent, trade secret, or trademark, and will indemnify Customer for any costs, liabilities, damages, or other amounts (including reasonable attorneys’ fees) actually paid or payable to unaffiliated third parties (“Losses”) resulting from such Claim.
(b) Otter will have no obligation to defend or indemnify Customer for any Claim under Section 6.1(a) to the extent it is based on: (i) Customer’s failure to use updates or modifications to the Otter Platform that Otter makes available to Customer that would have helped avoid or mitigate the Claim had they been used; (ii) the combination, operation, or use of the Otter Platform with third-party equipment, devices, software, application, systems, or data, including Non-Otter Resources, where the infringement would not have occurred but for such combination, (iii) use of the Otter Platform by Customer or Customer’s Authorized Users in violation of this Agreement, or (iv) Customer Content.
(c) If Customer’s use of the Otter Platform is, or in Otter’s reasonable discretion is likely to be, subject to a Claim that may give rise to a defense or indemnity obligation under Section 6.1(a), Otter may, at its sole discretion and at no charge to Customer (and in addition to Otter’s obligations to Customer under Section 6.1(a)): (i) procure for Customer the right to continue using the Otter Platform in accordance with this Agreement; (ii) replace or modify the Otter Platform so that it is non-infringing and includes substantially similar functionality as the original Otter Platform; or (iii) if options (i) and (ii) above are not commercially practicable in Otter’s reasonable discretion, Otter may terminate Customer’s right to use the impacted portion of the Otter Platform (in which case, Customer will immediately stop using the impacted portion of the Otter Platform) and provide a pro-rata refund of any pre-paid fees for the impacted service that remain unused as of the date of termination.
(d) THIS SECTION 6.1 SETS FORTH OTTER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT BY THE OTTER PLATFORM AND ANY OTHER TYPE OF CLAIM SPECIFICALLY COVERED UNDER OTTER’S INDEMNITY OBLIGATION (IF ANY). NO PARTY TO THIS AGREEMENT WILL BE ENTITLED TO ANY FORM OF IMPLIED OR EQUITABLE INDEMNIFICATION AT ANY TIME, WHETHER BASED ON A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY, AND ANY RIGHT THERETO IS HEREBY IRREVOCABLY WAIVED AND DISCLAIMED BY EACH OF THE PARTIES.
6.2. Indemnification by Customer. Customer will defend Otter from any Claim based on Customer Content or use of the Otter Platform by Customer (or Customer’s Authorized Users) in violation of this Agreement, and Customer will indemnify Otter from any Losses resulting from any such Claim.
6.3. Process. If a party entitled to indemnification (the “Indemnified Party”) becomes aware of any indemnifiable Claim, such party will give the other party (the “Indemnifying Party”) written notice of the Claim as soon as reasonably practicable. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense or settlement of the Claim, and will allow the Indemnifying Party to have sole control of the defense or settlement. Subject to the prior sentence, the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Claim. To take advantage of the indemnity, the Indemnified Party must use all commercially reasonable efforts to mitigate its Losses. The Indemnified Party is not required to admit liability, except as required by applicable law, and any compromise or settlement of a Claim requiring the Indemnified Party to admit liability or to pay any money will require the prior written consent of both parties, such consent not to be unreasonably withheld or delayed. The indemnity obligations of the Indemnifying Party will be contingent on the Indemnified Party’s compliance with this process.
7.1. Limitation on Indirect Liability. EXCEPT FOR EXCLUDED CLAIMS, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILL EITHER PARTY, ITS AFFILIATES AND ITS OR THEIR CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS (COLLECTIVELY, ITS “PARTY REPRESENTATIVES”), BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, DATA, OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE OTTER PLATFORM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. Limitation on Amount of Liability. EXCEPT FOR EXCLUDED CLAIMS, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILL THE TOTAL LIABILITY OF EITHER PARTY, ITS AFFILIATES, AND ITS OR THEIR PARTY REPRESENTATIVES FOR ANY AND ALL DAMAGES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE OTTER PLATFORM, EXCEED, IN THE MAXIMUM AGGREGATE, THE FEES PAID AND PAYABLE TO OTTER UNDER THE CUSTOMER’S APPLICABLE ORDER IN THE TWELVE-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE DAMAGE OCCURRED.
7.3. In General. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY OTTER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8.1. Term. The term of this Agreement will commence on the Subscription Start Date of the first Order entered into between the parties and will continue until all Orders hereunder expire or until terminated in accordance with this Section 8, whichever happens first. If you purchase a subscription to the Otter services, the subscription term will automatically renew for successive periods unless either party gives the other party notice of its intent not to renew. That notice must be given at least thirty days before the start of the next renewal period.
8.2 Termination. Either party may terminate an individual Order or this Agreement upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate or suspend an individual Order or this Agreement upon written notice to the other party without a cure period if (a) the other party breaches any of the terms relating to such party’s intellectual property rights or Confidential Information, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
8.3. Effect of Termination. Termination of this Agreement will result in termination of all ongoing Orders; however, termination of a single Order will not result in termination of this Agreement or any other ongoing Orders. If Customer terminates under Section 8.2, Otter will provide Customer a pro rata refund of prepaid unused fees applicable to the remainder of the Order Term for any terminated Order. If this Agreement or any Order is terminated for any other reason, Customer will not receive a refund and will pay all fees as if the Order had not been terminated. Upon any termination, to the extent permitted by applicable law, Otter will make all Customer Content then held by Otter pursuant to the applicable Order available to Customer for electronic retrieval for a period of 30 days, but thereafter Otter will delete or retain any stored Customer Content as directed by Customer. The following sections of this Agreement will survive any expiration or termination of this Agreement: 2, 4, 5.3, and 7-9.
9.1. Affiliates. A Customer Affiliate may enter into an Order under this Agreement and, in such case, by entering into the Order, the Affiliate agrees to be bound by the terms and conditions of this Agreement with respect to such Order and such Affiliate will be considered to be Customer, as such term is used herein, with respect to such Order. This Agreement is intended for the benefit of the parties who have entered into an Order under this Agreement and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
9.2. Force Majeure. Except for the obligation to make payment, neither party will have any liability for failures or delays resulting from that party experiencing a Force Majeure Event. If a party experiences a Force Majeure Event, such party will: (a) promptly notify the other party of occurrence of the Force Majeure Event; and (b) use reasonable efforts to limit damages to the other party and to resume its performance under this Agreement. If a Force Majeure Event causes a party to fail to comply with its obligations under this Agreement for 30 or more consecutive days, either party may terminate this Agreement upon written notice, without liability. “Force Majeure Event” means any event or circumstance (other than a party’s inability to satisfy payment obligations) that is outside a party’s reasonable control, whether or not foreseeable.
9.3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing (electronic mail sufficient) and sent to:
Otter: Contact identified in the Order
Customer: Contact identified in the Order
9.4. Severability; No Waiver. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof and it is the intent and agreement of the parties that this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and achieves the same objective. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
9.5. Assignment. This Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may (without the other party’s prior written consent) assign this Agreement, in whole, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such party’s assets. Any purported assignment in violation of this section is null and void.
9.6. Service Providers. For the avoidance of doubt, Otter may engage third party service providers to support its performance of this Agreement (including the subprocessors listed at https://otter.ai/subprocessors). Nevertheless, Otter will remain responsible for compliance with this Agreement.
9.7. No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party.
9.8. Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Customer and Otter submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under this Agreement.
9.9. Export Control. The Otter Platform and Customer’s use thereof is subject to export control and economic sanctions laws and regulations (collectively, “Export Controls”), including the U.S. Export Administration Regulations, the laws, statutes, regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”). Otter and Customer each represents that it is not on (or owned or controlled by any person identified on) the OFAC Specially Designated Nationals and Blocked Persons List or any other list of prohibited or restricted parties promulgated under Export Controls. Customer must comply with all applicable Export Controls in its access to and use of the Otter Platform and Customer Content. Customer will not access or use the Otter Platform, export, re-export, distribute, assign, or otherwise engage in any transaction relating to the Otter Platform or any Customer Content in violation of Export Controls. For the avoidance of doubt, Otter may take measures required by law or governmental authority to comply with its obligations under Export Controls and OFAC (such as suspending access to the Otter Platform, terminating this Agreement, or blocking the relevant Customer Content).
9.10. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
9.11. Government Use. This Section 9.11 only applies if Customer is a government or public sector entity. Customer represents and warrants to Otter that it is entering into this Agreement in compliance with any applicable public procurement laws and regulations. If Customer is a U.S. government or U.S. public sector entity (or use of the Otter Platform is for the U.S. government), the Otter Platform and Documentation are “commercial products” (as defined at 48 C.F.R. §2.101), consisting of “commercial computer software” and “commercial computer software documentation” (as used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable). In accordance with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software and commercial computer software documentation associated with the Otter Platform will be as provided in this Agreement. If a U.S. Government agency or end user has a need for rights not conveyed under these terms, it must negotiate with Otter to determine if there are acceptable terms for transferring such rights, and a mutually acceptable addendum to this Agreement will be required in any applicable contract or agreement. The sections in this Agreement titled “Governing Law and Dispute Resolution,” “Indemnification by Customer,” any auto-renewal terms, and any other terms inconsistent with applicable law are hereby waived to the extent necessary to conform to applicable law.
9.12. Interpretation. Whenever the words “including,” “include,” “includes,” or “such as” are used herein, they will be deemed to be followed by the phrase “without limitation.”
9.13. Entire Agreement. This Agreement supersedes all other agreements between the parties relating to its subject matter. In the event of any conflict among any Orders and the terms of this Agreement, the order of precedence will be: (a) the Orders (from newest to oldest); and (b) terms of this Agreement. The parties agree that any terms and conditions stated in a Customer purchase order or other Customer ordering documentation (including any vendor management portal) are void.
9.14. Promotion. Otter may use Customer’s name and logo to publicly identify Customer as a customer of the Otter services. Customer will consider in good faith any request by Otter to (1) provide a quote from a Customer executive regarding Customer’s motivation for using the Otter services that Otter may use publicly and (2) participate in a public co-marketing activity.
The following capitalized terms will have the meanings set forth below:
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or under common control with such entity. As used in this definition, “control” (including, with correlative meanings, “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means this Software Services Agreement (together with its exhibits and addenda).
“Authorized Users” means employees, contractors, and other persons associated with the Customer or its Affiliates who access or use the Otter Platform through the Customer’s account.
“Customer Content” means applications and materials that are developed by Customer or its Authorized Users on the Otter Platform or uploaded to the Otter Platform by Customer or its Authorized Users.
“Documentation” means Otter-provided documentation available at https://help.otter.ai/hc/en-us or such successor link identified by Otter.
“Excluded Claims” means damages resulting from (1) either party’s willful misconduct or gross negligence, or (2) infringement by a party of the other party’s intellectual property rights.
“Non-Otter Resources” means applications and materials that are developed or otherwise provided by a party other than Otter, including files, plugins, component libraries, services, products, platforms, integrations, and code components.
“Order” means an ordering document or online order that is entered into between Customer and Otter and specifies, among other things, details relating to the number of Authorized Users.
“Order Term” means the subscription term length set forth in the applicable Order or, with respect to early access features, the evaluation period set forth by Otter.
“Otter” means Otter, Inc., a Delaware corporation.
“Otter Platform” means the Otter offerings identified in an Order, including any related mobile and desktop applications, early access features, integrations and resources developed by Otter for use with the Otter offerings identified in an Order, and Documentation. For the avoidance of doubt, the “Otter Platform” excludes Non-Otter Resources.
