These General Terms and Conditions are an integral and indivisible part of the Order Form to which they are attached or in which they are referenced, executed by and between Company and Customer (“Order Form“). These General Terms and Conditions, along with the Order Form and any other document referenced therein, shall be collectively referred to as the “Agreement“. Capitalized terms not defined herein shall have the meaning ascribed to them in the Order Form.
1. Services.
1.1. License.
During the Term (as defined in the Order Form) and subject to the terms and conditions hereof, Company shall provide Customer with a limited, revocable, non-exclusive, non-transferable right to make the Services available, within Customer’s platform designated in the Order Form (“Customer Platform“), to students of Customer and of Customer’s end customers (“Students“). Company provides an AI-powered conversational avatar for spoken English practice. Each Session is a real-time spoken conversation between a Student and the avatar, conducted in accordance with a parameterized scenario script aligned with the applicable course of the Customer Platform and calibrated to the Student’s CEFR level, as determined by Customer. During such Sessions, the Services automatically capture and analyze Session data, including identification of pronunciation patterns, grammar usage, and vocabulary, and generate a Session transcript and Session results reported back to the Customer Platform (“Session Outputs“). The Services are embedded in the Customer Platform by way of iframe integration with URL parameter passing, and report Session Outputs to the Customer Platform by way of webhooks, as may be further described in the Order Form. As part of the Services, Company will provide setup and configuration of the Services, including customization of the Services’ web platform interface with Customer’s trademarks, logos, branding, and other materials (“Customer Marks“). The Services shall be deployed on a white-label basis within the Customer Platform, carrying Customer Marks. The Services will be deployed with Customer’s Students in accordance with the terms set forth in the Order Form.
1.2. Implementation.
Company shall perform the one-time implementation set forth in the Order Form, which may include analysis of Customer’s courses and curriculum, setup of avatar scenarios driven by parameterized scenario scripts, production of custom avatars, and integration of the Services into the Customer Platform, including by way of iframe embedding with URL parameter passing and webhook-based reporting of Session results. Each scenario is subject to up to two (2) review and feedback rounds by Customer; modifications requested following Customer’s approval of a scenario shall constitute change requests, priced separately by mutual written agreement. Company’s delivery timelines are conditional upon timely receipt from Customer of pedagogical materials, scenario descriptions, the student identifier scheme and integration entry points. For the avoidance of doubt, the Services comprise the conversational avatar Sessions and associated Session reporting only; any additional capabilities, including post-session recap and deep analysis, adaptive learning modules, extended dashboards, or mobile-native components, are outside the scope of the Services and subject to separate written agreement.
1.3. Support and Monitoring.
As part of the Services, during the Term, Company shall provide: (i) reasonable ongoing technical support via email during regular business hours; (ii) a client-facing monitoring view covering data flow, errors and availability; and (iii) reasonable launch support for the deployment of the Services on the Customer Platform.
1.4. Third-Party Components; Substitution.
The Services incorporate third-party components and providers, including third-party generative AI tools (“AI Tools“). Company may, at its sole discretion, replace or substitute any third-party provider or component used in the provision of the Services, provided that following such substitution the Services continue to materially conform to the specifications and service levels set forth in this Agreement.
1.5. Customer Data.
Customer hereby acknowledges and agrees that use of the Services involves processing of Customer Data (as defined below) as input to AI Tools. Customer shall be solely responsible for ensuring that Customer Data is appropriate for use as input and hereby undertakes to abide by the Customer Data restrictions set forth below. “Customer Data” shall mean any information or data Customer provides to Company in connection with the Services, including Customer Marks, Session conversations (including audio and voice data), curriculum and pedagogical materials, and any personal data, as such is defined in applicable law (“Personal Data“), processed in the course of Sessions. Customer acknowledges and agrees that the applicable AI Tool provider may review and monitor Customer Data, including inputs and outputs, for compliance purposes, including to detect suspicious, abusive, or harmful content or other breaches of such AI Tool provider’s acceptable use policies.
1.6. Data Handling; Processor Role.
With respect to Personal Data of Students processed in the course of Sessions, Company acts as a processor on behalf of Customer, and Customer (or its applicable end customer) acts as the controller. Customer shall be solely responsible for providing all required notices to, and obtaining all required consents from, Students, teachers and end users. Company shall: (i) not retain personally identifiable information of Students; (ii) delete Session audio and video upon completion of processing, retaining only the Session transcript for the provision of the Services; (iii) process Customer Data solely for the provision of the Services; and (iv) delete Customer Data upon Customer’s written instruction, including by instructing its subprocessors accordingly. Retention periods may be further specified by Customer, and the parties may, at Customer’s request, execute a data processing agreement (“DPA“) which, upon execution, shall form part of this Agreement. Notwithstanding the foregoing, Company may collect and process account and usage data (such as login and Session times) subject to Company’s privacy notice, and may use anonymized and aggregated data that does not identify Customer and/or any individual for the improvement of the Services.
1.7. Accounts and Access.
Customer shall provide Company, as part of Customer Data, (i) the Student identifier scheme and Session parameters passed to the Services in connection with Students’ use of the Services, including course, unit, scenario and CEFR level; and (ii) access to and integration with the Customer Platform as required for the provision of the Services. Such information may be processed for the operation and customization of the Services. Customer represents and warrants that it has all necessary rights and authorizations to provide such information and grant such access to Company. Customer shall be solely responsible for all activities that occur under any administrator account(s) provided to it, including any unauthorized access or use.
1.8. Customer Data Restrictions.
Customer Data must comply with all applicable laws, rules, and regulations. Customer Data may not: (a) violate the legal rights of others, including through defamation; (b) infringe or result in the infringement of any third party’s intellectual property, moral, publicity, privacy, or other rights; (c) be connected to illegal, counterfeit, fraudulent, pirated, unauthorized, or violent activity, including the use of stolen or unauthorized material; or (d) include content that is offensive, racially or ethnically insensitive, obscene, or otherwise unlawful. Customer is solely responsible for the accuracy, quality, and legality of Customer Data and for ensuring that Customer Data does not include any sensitive Personal Data (as defined by applicable law) or other information that is subject to specific regulations.
1.9. Minors.
For the avoidance of doubt and without derogating from any general provision hereunder, when the Services are used in connection with Students who are minors, as defined under applicable law (“Minors“), Customer shall be solely responsible to: (i) ensure that Customer’s use of the Services is fully compliant with all applicable laws, rules, and regulations governing the protection of Minors; (ii) ensure that appropriate oversight of the use of the Services by Minors is in place; and (iii) obtain all necessary consents and provide all required notices to each Minor and the parent or legal guardian of such Minor, as required by applicable law to allow Company to lawfully process Customer Data of Minors, including Personal Data, for the purposes set forth herein, including in connection with AI Tools.
2. Pilot Phase; KPI Review; Progression.
2.1. Pilot Phase.
The Services shall initially be provided during the pilot phase specified in the Order Form (“Pilot Phase“), subject to the Student and concurrency limits set forth therein.
2.2. Pilot KPIs.
The performance of the Services during the Pilot Phase shall be measured against the KPIs and benchmarks set forth in the Order Form, in the manner and using the measurement methodology reasonably agreed by the parties.
2.3. KPI Review; Opt-Out; Progression.
No later than the KPI review date set forth in the Order Form, the parties shall jointly review the performance of the Services during the Pilot Phase against the Pilot KPIs. Following such review, the parties shall proceed to the initial annual commitment period specified in the Order Form (“Initial Term“) on the terms set forth in the Order Form. Customer may elect not to proceed to the Initial Term by providing written notice to Company no later than the opt-out date set forth in the Order Form, which election shall be Customer’s sole and exclusive remedy in respect of the Pilot KPIs; after such opt-out date, such right shall expire and terminate and the Initial Term commitment shall become binding on both parties regardless of whether the Pilot KPIs were met.
2.4. Concurrency.
The Services shall support the concurrency levels set forth in the Order Form for the applicable period. Additional concurrency capacity, if any, shall be as set forth in the Order Form or as otherwise agreed by the parties in writing.
3. Representations and Warranties.
3.1. Mutual Representations.
Each party hereto represents and warrants that (a) it is duly organized under applicable law; (b) it has the authority to enter into this Agreement; and (c) the execution and performance of this Agreement do not conflict with any contractual obligations it has to any third party or with any legal requirement.
3.2. Company Representations.
Company further represents and warrants that it will use commercially reasonable efforts to provide the Services faithfully, diligently, and with skill and ability in accordance with industry standard.
3.3. Customer Representations.
Customer further represents and warrants that: (i) Customer Data provided is and will remain truthful and accurate; (ii) Customer has all necessary rights, licenses, and legal bases to provide Customer Data to Company; (iii) Customer Data does not and will not infringe any third party rights, and Company’s use of such data as permitted under this Agreement (including use by Company’s service providers) does not and will not infringe any third party rights, including without limitation, intellectual property rights and/or privacy rights; (iv) Customer has provided all required notices and obtained and will maintain all necessary rights and legal bases to provide Personal Data (including that of teachers and Students) to Company and Company’s service providers to process such Personal Data for the provision of the Services hereunder or as otherwise permitted under this Agreement, including any required consents or specialized notices (such as for children), and will maintain records of such legal bases as required by law; (v) it will be liable for and ensure that all its users, including but not limited to teachers and Students, are subject to all restrictions, obligations, and protections set forth herein, including, without limitation, representations and warranties, compliance with use restrictions, intellectual property, indemnification obligations, and limitation of liability provisions; (vi) Customer’s use of the Services will comply with all applicable laws and/or any contract to which Customer is subject.
4. Restrictions.
Customer shall not and shall not allow any third party to (attempt) to (a) decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Services; (b) circumvent, disable, or otherwise interfere with features of the Services related to security or access; (c) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (d) harvest, collect or mine information about users of the Services; (e) provide, distribute, or make available the Services to any third party through a service bureau, time-sharing, and/or similar arrangement, and/or for the purpose of providing services similar to the Services to others, except as explicitly authorized under this Agreement; or (f) directly or indirectly, develop and/or distribute any products or services that compete with or are substantially similar to the Services. Except as expressly permitted herein, Customer may not and may not allow any third party to copy, modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works of, transfer, sell, further develop, download, or otherwise use the Services or any content produced thereby in any manner not permitted by this Agreement. Customer will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Services, except as expressly contemplated by the white-label deployment set forth in the Order Form.
5. Consideration.
During the Term, in consideration of the Services, Customer shall pay the fees set forth in the Order Form. All amounts payable hereunder are exclusive of all applicable VAT, taxes and government charges (which shall be added to any payment to the extent applicable), and Customer shall make payment to Company without deduction for and free and clear of any such amounts. Amounts are due and payable in accordance with the billing schedule set forth in the applicable Order Form, subject to an invoice. Company may update the fees prior to the commencement of any Renewal Term and will provide Customer with notice of any such changes. Where fees are stated per Consumed Minute: “Consumed Minute” means the duration of a Session, measured from establishment of the avatar connection until termination of the Session, aggregated by the minute across the applicable billing period; Sessions failed due to a technical error attributable to Company, and sessions conducted in staging, QA or demonstration environments, shall not be counted as Consumed Minutes. Any annual bundle of Consumed Minutes set forth in the Order Form is general in nature and may be consumed by Customer at its discretion across any courses, scenarios, Students and calendar months during the applicable annual period, without per-course or per-month allocation.
6. Intellectual Property.
Company and its licensors, as the case may be, own all rights, title, and interest in and to the Services and all modifications, enhancements, and updates thereto and all worldwide intellectual property rights, including in the avatar engine, the parameterized scenario scripts and scenario framework, the Session Outputs framework, and the trademarks, service marks, and logos contained therein, registered and unregistered (the “Marks“). Nothing in this Agreement shall be construed as granting Customer or any third party any right to use the Services and any Marks except as set forth herein. If Customer provides Company with any feedback regarding the Services, Company may use all such feedback without restriction and without any consideration to Customer and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback. Customer owns and shall retain all right, title, and interest in and to the Customer Platform, the Customer Data (including Customer’s curriculum and pedagogical materials) and the Customer Marks. Customer hereby grants Company (i) a non-exclusive, worldwide, royalty-free license to use, copy, and create derivative works of Customer Data as necessary to provide the Services and as otherwise contemplated herein, for the duration of the Term; and (ii) a limited, non-exclusive, royalty-free license during the Term to use, display, and reproduce Customer Marks solely for the purpose of providing white label customization of the Services’ web platform interface.
7. Confidential Information.
Each party (each, a “Recipient“) may have access to certain non-public or proprietary information of the other party (each, a “Disclosing Party“) including any technical or non-technical information related to the other party’s business and current, future and proposed products, services, pricing, and (prospective) customers in each case whether or not specifically designated as “confidential” or “proprietary” (“Confidential Information“). The terms of the Agreement shall be considered the Confidential Information of Company. Recipient may use or disclose Confidential Information only as necessary to provide or receive the Services or to otherwise fulfill its obligations under this Agreement. Recipient must protect Confidential Information with at least the same care it uses to secure its own Confidential Information, but in any event with a reasonable degree of care. The obligations set forth in this Section shall survive termination of this Agreement for any reason for a period of three (3) years; provided, however, that trade secrets shall remain confidential indefinitely. Recipient’s obligations hereunder do not apply to any Confidential Information that Recipient can demonstrate by written records (a) was in the public domain at or subsequent to the time the Confidential Information was received by Recipient through no act or omission of Recipient; (b) was rightfully in Recipient’s possession free of any obligation of confidentiality at or subsequent to the time the Confidential Information was communicated to Recipient by Disclosing Party; or (c) was independently developed by Recipient without use of, or reference to, any Confidential Information. A disclosure of any Confidential Information by Recipient in response to a law, regulation, or governmental or judicial order (“Order“) will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Recipient, to the extent permitted by such Order: (i) provides prompt prior written notice thereof to Disclosing Party; (ii) reasonably cooperates with Disclosing Party in opposing such disclosure; and (iii) only discloses to the extent required by such Order.
8. Indemnification.
Customer shall defend, indemnify, and hold harmless Company (and its officers, directors, and employees) from and against any and all claims, damages, costs, losses, liabilities, or expenses (including court costs, reasonable attorneys’ legal fees, and any administrative and/or criminal fines) that Company may suffer or incur in connection with any actual or threatened claim, demand, action, or other proceeding by any third party, including without limitation any AI Tool provider, any teacher, Student, and/or any parent or guardian of any Student, arising directly or indirectly from or relating to (i) any breach of this Agreement by Customer or anyone on its behalf, including, without limitation, breach of applicable law and/or any representations and warranties; and/or (ii) use or misuse of the Services by Customer.
9. DISCLAIMER OF WARRANTY
9.1.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE SERVICES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICES AND SESSION OUTPUTS WILL BE GENERATED, PARTIALLY OR WHOLLY, BY THE AI TOOLS USED. CUSTOMER ACKNOWLEDGES AND AGREES THAT, DUE TO THE NATURE OF GENERATIVE AI TOOLS, OUTPUT CUSTOMER RECEIVES MAY BE MATERIALLY SIMILAR TO OUTPUT PRODUCED BY OTHER USERS OF SUCH TOOLS. CUSTOMER FURTHER ACKNOWLEDGES THAT THE AI TOOLS MAY GENERATE CONTENT THAT IS INACCURATE, UNRELATED, INAPPROPRIATE, OFFENSIVE OR OTHERWISE UNSUITABLE. USE OF THE SERVICES AND ANY SESSION OUTPUTS IS AT CUSTOMER’S SOLE RISK.
9.2. Student Assessments.
IT IS HEREBY CLARIFIED THAT THE SERVICES ARE NOT INTENDED TO BE USED AS A SINGLE SOURCE OF ASSESSMENTS OF ANY STUDENT, BUT AS A SUPPORTIVE COMPLEMENTARY TOOL TO BE USED BY QUALIFIED TEACHERS. ANY ASSESSMENT REGARDING THE PROFICIENCY, SKILL LEVEL, INTELLIGENCE, EMOTIONAL STATE, OR OTHERWISE SHALL BE MADE, IF MADE, SOLELY BY THE APPLICABLE TEACHER OR OTHER QUALIFIED PROFESSIONAL. COMPANY DISCLAIMS ANY LIABILITY REGARDING THE USE OF THE SERVICES TO ASSESS THE PROFICIENCY, SKILL LEVEL, INTELLIGENCE, AND/OR EMOTIONAL STATE OF ANY STUDENT.
9.3. Data Retention.
CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT A DATA RETENTION SERVICE AND THAT SESSION AUDIO AND VIDEO ARE DELETED UPON COMPLETION OF PROCESSING AS SET FORTH IN SECTION 1. CUSTOMER MUST CREATE BACKUPS OF ITS DATA, AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY IN RESPECT OF ANY LOSS OF OR DAMAGE TO ANY DATA, INCLUDING WITHOUT LIMITATION, ANY CUSTOMER DATA AND/OR SESSION OUTPUTS.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST REPUTATION, LOST BUSINESS OPPORTUNITIES, OR LOST DATA. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY’S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND/OR UNDER ANY CAUSE OF ACTION IS LIMITED TO THE FEES ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER IN RESPECT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR CAUSE OF ACTION.
11. Term and Termination.
This Agreement will be in effect as of the Effective Date and shall continue in full force through the Pilot Phase and, unless Customer has exercised its opt-out right in accordance with Section 2, through the Initial Term. Upon expiration of the Initial Term, the Agreement shall automatically renew for successive twelve (12) month periods (each, a “Renewal Term” and together with the Pilot Phase and the Initial Term, the “Term“), unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Term. Either party may terminate this Agreement in the event of breach by the other party by providing fifteen (15) days’ prior written notice to the breaching party and where such breach is not cured within the notice period. Upon expiration or termination of this Agreement, Company shall, upon Customer’s written instruction, delete Customer Data in accordance with Section 1.6.
12. Publicity.
During the Term, Company may refer to Customer as a customer of Company, including by displaying Customer’s name and logo on Company’s website and other marketing materials, and may publish a case study regarding the deployment of the Services with Customer, subject to Customer’s prior review of such case study. For the avoidance of doubt, this publicity right is separate from and in addition to the white-label deployment of the Services within the Customer Platform as set forth in the Order Form.
13. Force Majeure.
Neither party will be liable for any default or delay in its performance of its obligations under this Agreement to the extent caused by, and only for the duration of, a natural disaster, act of God, act of war or terrorism, riot, third-party labor strike, pandemic, or a failure or discontinuation of a third-party provider beyond the affected party’s reasonable control, or other similar occurrence beyond its reasonable control, provided that the affected party makes all reasonable efforts to comply with its obligations despite the occurrence, including, in the case of Company, by exercising its substitution rights under Section 1.4. The party affected by any such occurrence shall, as soon as reasonably practicable, notify the other party of the occurrence and its expected duration and impact on such affected party’s performance. It is clarified that noncompliance with payment obligations due to a force majeure event may be delayed but will not be excused.
14. Notices.
Any notices required to be given pursuant to this Agreement shall be delivered or sent by registered mail or email transmission (with electronic confirmation of delivery) to the addresses of the parties hereto set out herein (or such other address or email address as may have been notified) and any such notice shall be deemed to have been received one (1) business day after delivery by courier, four (4) business days after delivery by registered mail and one (1) business day after email transmission and written confirmation receipt of such transmission.
15. General.
This Agreement sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. No amendments or waivers shall be effective unless in writing and executed by both parties. Company may assign all of its rights and obligations under this Agreement to an affiliate or to a purchaser of all or substantially all of Company’s assets or share capital. Customer may not assign any rights or obligations under this Agreement to any third party and assignments in violation of the foregoing shall be void. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between the parties. This Agreement shall be governed by the laws of the State of Israel without regard to conflicts of law provisions thereof. The parties agree that the competent courts in Tel Aviv – Yafo, Israel shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. Having agreed to the foregoing exclusive jurisdiction in good faith, the parties hereby waive any challenge to venue and jurisdiction in such courts. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of this Agreement shall remain in effect.