These Terms of Service for Cloud Services (these “Terms”) constitute a legally binding contract between You and Newo Inc., a Delaware corporation with its principal place of business located at 2261 Market Street #5263 San Francisco, CA 94114 USA. “You” (or “Customer”, “AI Agent Owner”) means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD SERVICE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Cloud Service, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for a Cloud Service, create a Customer Account, place an Order or pay our Invoice for a Cloud Service. For No-Charge Services, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Service.
1. Definitions
“Newo”, “newo.ai”, “we” or “us” means Newo Inc., a Delaware corporation with its principal place of business located at 2261 Market Street #5263 San Francisco, CA 94114 USA.
“You”, “Customer”, “AI Agent Owner” means the legal entity or individual that maintains a Customer/Organization Account on the Platform, creates AI Agents on the Platform, and/or uses the Platform.
“End User” means an individual who has a Member Account on the Platform. End Users receive access to their Member Account at the discretion and with the consent of the Customer (AI Agent Owner).
“Partner” means an entity or individual authorized by Newo to resell, implement, or provide technical support under the Newo brand or under their own brand.
“Third-Party Data Subject” or “Data Subject” means individuals whose personal data may be processed through the Cloud Services when they interact with AI Agents (e.g., during phone calls, text messaging, or other communications facilitated by the Cloud Services).
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“Activity Data” means data collected and processed by the Cloud Services from Customer Accounts, linked Member Accounts, and Data Subjects.
“Additional Services” means any services not included in the standard Cloud Services, such as implementation, customization, or professional services.
“Administrator” means the End User designated by you to administer the Customer Account on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“AI Agents” or “AI Employees” means the third-party facing AI automation solutions created through the Platform, including but not limited to automated customer interactions, voice and text communications, appointment scheduling, data collection, and CRM integration.
“Base Subscription Monthly Fee” means the fixed amount you pay each month for your Subscription.
“Bypass Protocol” means a temporary fail-over procedure that Newo may invoke when the Platform or any AI Agent experiences material unavailability or performance degradation. Further details are set out in Section 17 (Warranties and Disclaimer).
“Cloud Services” or “Platform” means cloud-based services, solutions (including but not limited to AI Agents), APIs, Newo websites and any client software we provide as part of the Cloud Services, provided by Newo.
“Customer Account” or “Organization Account” means an account on the Platform that provides access to linked End Users to create, modify and configure AI Agents.
“Customer Components” means custom prompts, scripts, procedural descriptions, skills, flows, workflow logic, code, images, audio, diagrams, data mappings, or other creative works authored by Partner or Customers.
“Default Components” means the default attribute texts, system prompts, skill templates, flows/workflows, sample code, images, audio snippets, diagrams, and similar collateral automatically generated by the Platform.
“Documentation” means our standard published documentation for the Cloud Services.
“End User Account” or “Member Account” means an account established by you or an AI Agent Owner for an End User that is linked to one or more Customer Accounts.
“Feedback” means comments, questions, ideas, suggestions, or other feedback relating to the Cloud Services, Technical Support, or Additional Services.
“Financial Commitment Amount” means the Base Subscription Monthly Fee × the Subscription Term (in months).
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, the exportation of technical or personal data, and Trade Control Laws as defined in the Trade Compliance Addendum.
“Notification Email Address” means the email address(es) used to register for a Cloud Service account or otherwise sign up for a Cloud Service. It is your responsibility to keep your email address(es) valid and current to enable us to send notices, statements, and other information.
“Order” means Customer Account, Newo’s applicable online order page(s), flows, in-product screens, or other Newo-approved ordering document or process describing the products and services ordered and, as applicable, their permitted scope of use. Orders may also include Additional Services and No-Charge Services.
“Our Deliverables” means any materials, deliverables, modifications, derivative works, or developments that we provide in connection with any Additional Services.
“Our Policies” means Privacy Policy for Cloud Services, Technical Support Policy, and (unless specified) any other policies or terms referenced in these Terms.
“Our Technology” means the Cloud Services (including all No-Charge Services), Our Deliverables, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“Overage Charges” means the number of Units consumed beyond the included bundle multiplied by the Overage Price.
“Overage Price” means the per-Unit rate that applies once you exhaust the included Units for your Subscription.
“Remaining Commitment” means the Financial Commitment Amount for your current Subscription minus all Base Subscription Monthly Fees already paid for that Subscription; Overage Charges are excluded from this calculation.
“Sensitive Data” means any (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical, or other protected health information regulated by HIPAA; (iii) credit, debit, or other payment card data subject to PCI DSS; (iv) other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers, or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Subscription” means the commercial plan you select for the Platform, as published on the Newo pricing page. A Subscription always specifies (i) the number of included Units, (ii) the Base Subscription Monthly Fee, and (iii) the Overage Price.
“Subscription Term” means the length of time (in whole months) during which you commit to paying the Base Subscription Monthly Fee. Typical periods are one (1) month, twelve (12) months, or another term we expressly confirm in writing.
“Support” or “Technical Support” means support for the Cloud Services, as further described in the Technical Support Policy. Support levels will be specified in the applicable Order.
“Training” means Newo-provided training and certification services.
“Units” means the metered activity items consumed under a Subscription, as described on the pricing page and updated prospectively from the next renewal.
“Your Data” or “Your Materials” means any data, content, code, video, images, or other materials of any type that you (including any of your End Users) submit to Cloud Services. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting, or otherwise making available such materials to or through the Cloud Services.
2. What These Terms Cover
2.1. Cloud Services
These Terms govern our Cloud Services, related Technical Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy for Cloud Services), your Orders, and the Trade Compliance Addendum.
2.2. Downloadable Self-Hosted and On-Premise Deployment Software Products Not Covered
These Terms do not apply to our downloadable software products, use of which requires a separate License Agreement. For clarity, however, any client software (e.g., a desktop or mobile application) we provide as part of the Cloud Services themselves remains subject to these Terms.
3. How Cloud Services Are Administered
3.1. Administrators
Through the Cloud Services, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of Cloud Services and End User Accounts. This may include making Orders for Cloud Services or enabling Apps (which may incur fees); creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. You are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Services for you.
3.2. Partner as Administrator
If you order Cloud Services through a Partner, then you are responsible for determining whether the Partner may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Partner. As between you and Newo, you are solely responsible for any access by Partner to your accounts or your other End User Accounts.
3.3. End User Consent
You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy for Cloud Services; and (ii) Newo’s provision of the Cloud Services to Administrators and End Users. When End Users provide access to Cloud Services to Third-Party Data Subjects, You are responsible for ensuring that End Users obtain all necessary consents and provide all required notices to such Third-Party Data Subjects in accordance with applicable data protection laws. You will provide evidence of such consents upon our reasonable request.
3.4. Responsibility for End Users
You are responsible for understanding the settings and controls for each Cloud Service you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access a Cloud Service, then we are only required to provide the Cloud Services to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Cloud Services. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organization or domain. If you use single sign-on (SSO) for identity management of your Cloud Service(s) such that End Users will bypass these screens and our User Notice, you are responsible for displaying our User Notice to End Users and for any damages resulting from your failure to do so.
3.5. Credentials
You must require that all End Users keep their user IDs and passwords for the Cloud Services strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
3.6. Age Requirement for End Users
The Cloud Services are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all End Users are at least 16 years old.
3.7. Domain Name Ownership
Where you are required to specify a domain for the operation of a Cloud Service or certain Cloud Service features, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Cloud Service or Cloud Service features.
4. What’s Included in Your Cloud Service Subscriptions; What Are the Restrictions
4.1. Access to Cloud Services
Subject to these Terms (including the Trade Compliance Addendum) and during the applicable Subscription Term, you may access and use the Cloud Services for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the Cloud Services, to download and use the client software associated with the Cloud Services. The rights granted to you in this Section are non-exclusive, non-sublicensable and non-transferable.
You are allowed to add to the Cloud Services any number of End User Accounts up to the maximum amount you have paid for according to the Order.
You are allowed to use the Cloud Services only during the Subscription Term paid by you according to the Order.
4.2. Support
During the Subscription Term, we will provide Technical Support for the Cloud Services in accordance with the Technical Support Policy and the applicable Order.
4.3. Restrictions
Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Services; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Services to a third party; (c) use the Cloud Services for the benefit of any third party; (d) incorporate any Cloud Services into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Services intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Service; (h) use the Cloud Services for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Services; (j) encourage or assist any third party to do any of the foregoing; or (k) use the Cloud Services in violation of the Trade Compliance Addendum.
5. Our Security and Data Privacy Policies
5.1. Security
We implement security procedures designed to help protect Your Data from security attacks.
5.2. Privacy
We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Services and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy for Cloud Services, which you acknowledge.
5.3. Improving Cloud Services
We are always striving to improve the Cloud Services. In order to do so, we use analytics techniques to better understand how our Cloud Services are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy for Cloud Services.
5.4. Subpoenas
Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. Newo strives to balance your privacy rights with other legal requirements.
5.5. GDPR
The Parties may be subject to additional terms and conditions under the General Data Protection Regulation (Regulation (EU) 2016/679). Such terms may be found in the Data Processing Addendum, which is hereby incorporated by reference and forms part of these Terms, to the extent applicable. In the event of any conflict or inconsistency between the Data Processing Addendum and these Terms, the Data Processing Addendum shall prevail. Where End Users process personal data of Third-Party Data Subjects through the Cloud Services, Newo acts as a sub-processor to You, and You remain the data controller or processor (as applicable) with respect to such Third-Party Data Subjects. You are solely responsible for compliance with all applicable data protection laws regarding Third-Party Data Subjects.
6. Terms That Apply to Your Data
6.1. Using Your Data to Provide Cloud Services to You
You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Services. Subject to these Terms, and solely to the extent necessary to provide the Cloud Services to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Service constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Services with End User permission in order to respond to your support requests. You also agree to grant us the right to obtain from time to time an anonymous copy of your data to be utilized for future development purposes and to enhance the Cloud Services generally provided. For clarity, Your Data may include personal data of Third-Party Data Subjects when End Users use the Cloud Services to interact with such third parties. In processing such data, Newo acts solely as a sub-processor following your instructions.
6.2. Your Data Compliance Obligations
You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Services and to grant the rights granted to us in these Terms; (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data; (iii) where Your Data includes personal data of Third-Party Data Subjects, you have fulfilled all obligations under applicable data protection laws, including but not limited to: providing appropriate privacy notices, obtaining necessary consents, establishing lawful bases for processing, and implementing appropriate safeguards for international data transfers; and (iv) Your Data and your use of the Cloud Services comply with the Trade Compliance Addendum. Other than our express obligations under Section 5 (Our Security and Data Privacy Policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Services.
6.3. No Sensitive Data
You will not submit to the Cloud Services (or use the Cloud Services to collect) any Sensitive Data. You also acknowledge that we are not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA). The Cloud Services are neither HIPAA nor PCI DSS compliant. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Data.
6.4. Your Indemnity
You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to: (i) your breach of Section 3.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of Cloud Services; (ii) your breach (or alleged breach) of Section 6.2 (Your Data Compliance Obligations) or Section 6.3 (No Sensitive Data); (iii) Your Materials; (iv) any claims by Third-Party Data Subjects related to the processing of their personal data through the Cloud Services, including claims under GDPR, CCPA, or other data protection laws; or (v) your breach of the Trade Compliance Addendum. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim; and (c) all reasonable necessary cooperation by us at your expense.
6.5. Removals and Suspension
We have no obligation to monitor any content uploaded to the Cloud Services. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies or the Trade Compliance Addendum, or in response to takedown requests that we receive, we may (1) remove Your Data from the Cloud Services or (2) suspend your access to the Cloud Services. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Service or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Services as described in this Section.
6.6. Use of Customer Name and Marks
Unless otherwise specified, Newo reserves the right to use your name, logo, and marks (including marks on Customer properties) to identify you as a Newo customer or partner on this Website and other marketing materials.
6.7. Third-Party Data Subject Processing
You acknowledge and agree that: (a) End Users may use the Cloud Services in ways that involve processing personal data of Third-Party Data Subjects (e.g., during phone calls, text conversations, or other interactions); (b) You are solely responsible for ensuring compliance with all applicable data protection laws regarding such Third-Party Data Subjects; (c) Newo processes such third-party personal data solely as a sub-processor acting on your behalf and under your instructions; (d) You must ensure that End Users implement appropriate technical and organizational measures to protect Third-Party Data Subject rights; (e) You are responsible for responding to any Third-Party Data Subject requests (e.g., access, deletion, portability requests) and Newo will provide reasonable assistance as required by applicable law.
7. Using Third-Party Products with the Cloud Services
7.1. Third-Party Products
You (including your End Users) may choose to use or procure other third party products or services in connection with the Cloud Services or implementation, customization, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the Cloud Services, we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the Cloud Services. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
8. Billing, Renewals & Payment
8.1. Subscription Purchase & Initial Payment
You are charged the first Base Subscription Monthly Fee on the Subscription start date. Should you consume more than the included Units, Newo automatically invoices and charges the resulting Overage Charges at the Overage Price.
8.2. Plan Changes
You may change your Subscription at any time via the account portal:
Upgrade (higher commitment): If the new plan’s Financial Commitment Amount exceeds the Remaining Commitment of your current plan, you pay the difference on the effective date of the change, and the billing cycle resets.
Downgrade (lower commitment): If the new plan’s Financial Commitment Amount is less than the Remaining Commitment, Newo will invoice and immediately charge you for the shortfall between those two amounts.
8.3. Overage Billing Cadence
Overage Charges accrue daily and are invoiced when they reach US $50 or at month-end, whichever comes first. Charges are due immediately and settled using the payment method on file.
8.4. Free Implementation / Trial Periods
At its sole discretion, Newo may grant a free Trial or Implementation period. Unit usage is metered but not billed during the period. Unless you cancel before the period ends, standard billing under your chosen Subscription begins automatically.
8.5. Unit Metric Publication
The definition of a Unit and the inclusions for each Subscription are published at https://newo.ai/pricing (or successor URL) and may be updated prospectively for future renewals.
8.6. Partner Arrangements
See Section 11 (If You Purchased Through a Partner).
8.7. Renewals & Non-renewal
Unless you give notice of non-renewal through your account settings at least 30 days before the current Subscription Term ends, your Subscription automatically renews for successive terms of equal length at the then-current Base Subscription Monthly Fee and Unit inclusions. Cancelling stops the next billing cycle but does not refund amounts already paid, and Newo will also charge any outstanding Remaining Commitment.
8.8. Invoicing & Payment Methods
Invoices are issued electronically in the currency stated on your order. You authorize Newo to charge all Base Subscription Monthly Fees, Overage Charges, plan-change true-ups, and applicable taxes to the payment method you provide. Except as expressly stated in Section 9 (Return Policy), Section 17.4 (Warranty Remedy), or Section 19 (IP Indemnification), all fees are non-refundable.
8.9. Delivery of Service
Login credentials and administrative access are delivered electronically once the initial payment clears; all subsequent deliveries are likewise electronic.
9. Our Return Policy
9.1. Return Policy
As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 17 (Warranties and Disclaimer), you may terminate your initial Order of a Cloud Service under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such Cloud Service. In the event you terminate your initial Order under this Section, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the Cloud Service and only if you exercise your termination right within the period specified above. You understand that we may change this practice in the future in accordance with Section 23 (Changes to These Terms).
10. Taxes Not Included
10.1. Taxes
Your fees under these Terms exclude any taxes or duties payable in respect of the Cloud Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
10.2. Withholding Taxes
You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
11. If You Purchased Through a Partner
11.1. Purchase Through a Partner
If you make any purchases through an authorized Partner: (a) Instead of paying us, you may be required to pay the applicable amounts directly to the Partner as agreed between you and the Partner. We may suspend or terminate your rights to use Cloud Services if we do not receive the corresponding payment from the Partner. (b) Your order details (e.g., the Cloud Services you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Partner on your behalf, and Partner is responsible for the accuracy of any such Order as communicated to us. (c) If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Partner and the Partner will be solely responsible for refunding the appropriate amounts to you. (d) Partners are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
12. No Contingencies on Other Products or Future Functionality
12.1. No Contingencies
You acknowledge that the Cloud Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Services beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
13. Evaluations, Trials, and Betas
13.1. Trials and Betas
We may offer certain Cloud Services to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Services”). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section, the terms and conditions of these Terms governing Cloud Services, including Section 4.3 (Restrictions), fully apply to No-Charge Services. We may modify or terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Cloud Services, and any pre-release and beta features within generally available Cloud Services, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Cloud Services. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section. All information regarding the characteristics, features or performance of any No-Charge Services (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SERVICES WILL BE US$100.
14. IP Rights in the Cloud Services, AI-Agent Components, and Feedback
14.1. Ownership of the Cloud Services
The Cloud Services are provided on a limited-access subscription basis. No ownership rights are transferred to You. Newo and its licensors own and retain all right, title, and interest—including all intellectual property rights—in and to the Cloud Services, Our Technology, and Our Deliverables, together with any modifications or derivative works thereof.
14.2. Default Components
When an account is created (whether through the Creator module or any other onboarding flow), the platform automatically generates certain building blocks required for the operation of AI agents—e.g., default attribute texts, system prompts, skill templates, flows/workflows, sample code, images, audio snippets, diagrams, and similar collateral (collectively, “Default Components”). All right, title, and interest in and to these Default Components (including any improvements, updates, or derivative works) remain exclusively with Newo. Subject to these Terms and during the applicable Subscription Term, Newo grants You a non-exclusive, non-transferable, non-sublicensable license to use the Default Components solely within the Cloud Services for Your internal business purposes.
14.3. Customer Components
You or Your End Users may author new or modified components for AI agents—such as custom prompts, scripts, procedural descriptions, skills, flows, workflow logic, code, images, audio, diagrams, data mappings, or other creative works (collectively, “Customer Components”).
Ownership: Except for any Newo intellectual property embodied therein, You retain all right, title, and interest in and to the Customer Components as submitted or developed by You.
License to Newo: You grant Newo and its Affiliates a worldwide, royalty-free, non-exclusive license for the Subscription Term (and as otherwise permitted in Section 6 (Terms That Apply to Your Data)) to host, copy, transmit, display, perform, and otherwise use the Customer Components solely as necessary: (i) to provide, secure, support, and improve the Cloud Services; (ii) to create backups, logs, and analytics; and (iii) to comply with applicable law.
Derivative Works & Aggregated Learnings: Newo will not incorporate Customer Components into publicly available template libraries or other customers’ AI agents without Your prior written consent. However, Newo may use de-identified, aggregated analytical insights derived from Customer Components to improve the performance and reliability of the Cloud Services, provided that no Customer Confidential Information is disclosed.
14.4. Feedback
If You or any End User elect to provide comments, suggestions, or other feedback regarding the Cloud Services or any related technology (“Feedback”), Newo may freely use, reproduce, license, distribute, and otherwise exploit such Feedback without restriction and without any obligation to You, so long as no Customer Confidential Information is publicly disclosed.
14.5. Reservation of Rights
Except for the limited rights expressly granted in this Section, no licenses or other rights (express, implied, by estoppel, or otherwise) are granted by either party, and all such rights are hereby reserved by the owning party.
15. Confidentiality
15.1. Parties’ Confidentiality
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Services will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
16. Term and Termination
16.1. Term
These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
16.2. Termination for Cause
Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
16.3. Termination for Convenience
You may choose to stop using the Cloud Services and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 9 (Our Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
16.4. Effects of Termination
Upon any expiration or termination of these Terms, you must cease using all Cloud Services and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data within 90 days unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Services during the applicable Subscription Term. If you terminate these Terms in accordance with Section 16.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 16.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
16.5. Survival
The following provisions will survive any termination or expiration of these Terms: Sections 4.3 (Restrictions), 6.4 (Your Indemnity), 7 (Using Third-Party Products with the Cloud Services), 8 (Billing, Renewals & Payment), 10 (Taxes Not Included), 13 (Evaluations, Trials, and Betas) (disclaimers and use restrictions only), 14 (IP Rights in the Cloud Services, AI-Agent Components, and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17 (Warranties and Disclaimer), 18 (Limitations of Liability), 19 (IP Indemnification) (but solely with respect to claims arising from your use of Cloud Services during the Subscription Term), 21 (Dispute Resolution), 25 (General Provisions), and the Trade Compliance Addendum.
17. Warranties and Disclaimer
17.1. Mutual Warranties
Each party represents and warrants that it has the legal power and authority to enter into these Terms.
17.2. Our Warranties (the “Performance Warranty”)
We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Services (but we are not responsible for harmful materials submitted by you or End Users).
17.3. Service Level
Newo commits to an annual uptime percentage of no less than 98% for the Service. If, due to technical circumstances—including, without limitation, the unavailability or degradation of the technologies used by the Platform—the performance of the AI Agents is diminished, Newo reserves the right to place the Platform or any specific AI Agent into “Bypass Protocol” mode, in which all inbound calls to that AI Agent are forwarded to the Customer’s public or escalation telephone number. Time spent in Bypass Protocol mode is excluded from the Service-downtime calculation.
The general availability of Cloud Service has no direct effect on the processing speed of Your Data. There is no guaranteed processing speed for Your Data.
In the event that the Service Level is not met, Newo will calculate the period of time when the Service is not available to You due to reported incidents based on incident duration and Newo will credit You with corresponding time.
Service exclusions: The Service Level commitment set forth above does not apply to any performance issues: (i) that resulted from your use of hardware, software, or services not provided by Newo (for example, third-party services), (ii) during scheduled downtime, (iii) during beta and trial services (as determined by Newo).
17.4. Warranty Remedy
We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Service for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Services. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section.
17.5. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ALL CLOUD SERVICES, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD SERVICES NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
18. Limitation of Liability
18.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
18.2. Liability Cap
EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
18.3. Excluded Claims
“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, (3) your breach of Section 4.3 (Restrictions), and (4) any breach of the Trade Compliance Addendum.
18.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
19. IP Indemnification
19.1. IP Indemnification
We will defend you against any claim brought against you by a third party alleging that the Cloud Services, when used as authorized under these Terms, infringe a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Cloud Services is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Service in accordance with these Terms; (ii) substitute a substantially functionally similar Cloud Service; or (iii) terminate your right to continue using the Cloud Service and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Cloud Service in the twelve (12) month period immediately preceding the Claim is less than US $50,000; (2) if the Cloud Service is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Service is used in combination with any non-Newo product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Services; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 6.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the Cloud Services or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 19 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD SERVICE OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
20. Publicity Rights
20.1. Publicity Rights
We may identify you as a Newo customer in our promotional materials. We will promptly stop doing so (wherever it’s technically possible and under our control) upon your request sent to support@newo.ai.
21. Dispute Resolution
21.1. Informal Resolution
In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 21.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
21.2. Governing Law; Jurisdiction
These Terms will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
21.3. Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 21.1 (Informal Resolution) and 21.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
21.4. Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
22. [Reserved]
23. Changes to These Terms
We may modify the terms and conditions of these Terms (including Our Policies and the Trade Compliance Addendum) from time to time, with notice to you in accordance with Section 25.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
23.1. No-Charge Services
You must accept the modifications to continue using the No-Charge Services. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Services.
23.2. Paid Subscriptions
Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.7 (Renewals & Non-renewal). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Services for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
23.3. Our Policies
We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
24. Changes to the Cloud Services
24.1. Cloud Services Changes
You acknowledge that the Cloud Services are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Services, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Services and Additional Services under existing Orders, we can discontinue any Cloud Services, any Additional Services, or any portion or feature of any Cloud Services for any reason at any time without liability to you.
25. General Provisions
25.1. Notices
Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Newo Inc., at 2261 Market Street #5263 San Francisco, CA 94114 USA Attn: General Counsel. Your notices to us will be deemed given upon receipt.
25.2. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
25.3. Assignment
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
25.4. Entire Agreement
These Terms (including the Trade Compliance Addendum) are the entire agreement between you and us relating to the Cloud Services and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Services or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
25.5. Conflicts
In event of any conflict between the main body of these Terms and Our Policies, the main body of these Terms will control with respect to their subject matter. In the event of any conflict between these Terms and the Trade Compliance Addendum, the Trade Compliance Addendum will control with respect to matters of export control and sanctions compliance.
25.6. Waivers; Modifications
No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 23 (Changes to These Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
25.7. Interpretation
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
25.8. Independent Contractors
The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
Trade Compliance Addendum (“TCA Addendum”)
This Trade Compliance Addendum forms part of, and is incorporated into, the Terms of Service for Cloud Services under which the Cloud Services are provided. Capitalized terms not defined herein have the meanings set forth in the Terms of Service.
1. Purpose and Scope
This Addendum forms part of, and is incorporated into, the Agreement under which the Cloud Services are provided (“Master Agreement”). It applies to all access, resale, or use of the Services by Partner, Customer, their Affiliates, and every End User.
2. Definitions
“Trade Control Laws” means collectively: (i) the U.S. Export Administration Regulations, 15 C.F.R. § 730 et seq. (“EAR”); (ii) the International Traffic in Arms Regulations, 22 C.F.R. § 120 et seq. (“ITAR”); (iii) economic sanctions programs administered by OFAC (e.g., 31 C.F.R. § 500-598) including Directive 4 restrictions on deep-water, Arctic offshore, and shale energy projects involving the Russian Federation; (iv) EU, UK, UN or other comparable export control or sanctions regimes; and (v) related enabling laws, amendments, and executive orders.
“Restricted Person” means any individual or entity that is: (a) listed on the U.S. SDN, BIS Entity or Denied Persons lists, EU Consolidated List, or UK Sanctions List; (b) owned 50 percent or more, or otherwise controlled, by such listed persons; or (c) located in, organized under the laws of, or ordinarily resident in a comprehensively sanctioned territory (e.g., Cuba, Iran, North Korea, Syria, or Crimea/DNR/LNR).
3. Representations and Covenants
Each Party represents, warrants, and covenants that it, its Affiliates, and its End Users:
- Are not Restricted Persons and are not owned or controlled by any Restricted Person;
- Will not export, re-export, transfer, or provide the Services, underlying technology, source code, or data in breach of any Trade Control Laws;
- Will not use the Services in support of exploration or production for deep-water, Arctic offshore, or shale projects that have the potential to produce oil in the Russian Federation or maritime areas claimed by it.
4. Screening and Flow-Down
Partner and Customer must:
- Implement screening procedures reasonably designed to block access for Restricted Persons;
- Contractually flow down obligations at least as strict as this Addendum to all resellers, subcontractors, and End Users, and furnish Newo evidence of such flow-down upon request.
5. Notification & Cooperation
The Party discovering an actual or suspected violation of Trade Control Laws relating to the Services must notify Newo within twenty-four (24) hours and cooperate in any investigation, license application, or voluntary self-disclosure.
6. Audit & Records
Upon ten (10) business days’ notice, Newo may audit relevant records or request reasonable certifications to verify compliance. Records required by Trade Control Laws must be retained for five (5) years after the later of: (i) termination of the Master Agreement or (ii) the last export/re-export transaction.
7. Suspension and Termination
Newo may immediately suspend or terminate access to the Services, without liability, if it reasonably believes a Party or End User is in breach of this Addendum or any Trade Control Law. Where a change in Trade Control Laws makes performance illegal, either Party may terminate the affected portion of the Master Agreement on thirty (30) days’ written notice.
8. Indemnification
Each Party will indemnify, defend, and hold harmless the other Party from penalties, fines, and reasonable costs arising out of its breach of this Addendum or applicable Trade Control Laws.
9. Updates to Laws
References to statutes and regulations include successor and amended provisions. Newo may update this Addendum to reflect mandatory changes in Trade Control Laws; updates take effect on the later of: (i) thirty (30) days after notice or (ii) the effective date required by law. If an update materially and adversely affects Partner’s or Customer’s lawful use of the Services, that Party may terminate the impacted Services for a pro-rata refund.
10. Survival
Sections 3-9 survive termination or expiration of the Master Agreement.