eGain AI Agent Master Services Agreement

Master Terms

These master terms (the “Agreement”) shall govern customer’s receipt, access to, and use of the services provided by eGain Corporation (“eGain”) by accessing the service through an online ordering process. If the individual accepting this agreement does so on behalf of a company or other legal entity (“Customer”); such individual represents and warrants that they have the authority to bind such customer and its affiliates to this agreement. If the individual accepting this agreement does not have such authority, or if the entity does not agree with these master term, such individual or entity may not use the services. Capitalized terms have the meanings set forth herein. The parties agree as follows:

1. The Service

1.1 Service Description

eGain owns and licenses a conversational AI agent for businesses to provide answers to their customers (the “Service”). Anything the Customer (including Users) configures, customizes, uploads, or otherwise utilizes through the Service is considered (“Customer Data”). Customer is solely responsible for all Customer Data it contributes to the Service. The Service may include templates, scripts, operational documentation (“Documentation”), and other materials that assist Customer in using the Service (“eGain Content”). Customer will not receive or have access to the source code of the Service.

1.2. Customer’s Service Term

Customer may request, through one or more ordering screens (“Order(s)”) Services, commencing on the date the Order is completed (“Service Commencement Date”) and continuing for the period described in the Order (“Service Term”). Subject to the terms of this Agreement, complete payment, Documentation, and the usage limits (“Use Limits”) Customer shall have a license, during the Service Term, to access and use the Services. Customer may authorize its employees, agents, Affiliates, subcontractors, or other third parties, with a login and password (“Users”) to use and access the Service solely for Customer’s own internal business purposes. An “Affiliate” of a party means any entity directly or indirectly controlling, controlled by, or under common control with that party, where “control” means the ownership of more than fifty percent (50%) of the voting shares or other equity interests.

1.3. eGain’s Ownership

eGain owns the Service, any software, eGain Content, Documentation, or anything else provided by eGain to the Customer or its User’s (collectively, the “eGain IP”). eGain retains all rights, title, and interest (including all intellectual property rights) in and to the eGain IP, all related and underlying technology, and any modifications, updates, enhancements, derivatives or fixes thereto. All rights not expressly granted to the Customer are reserved by eGain, and any implied licenses are disclaimed under this Agreement. Customer acknowledges that the Service is an evolving, subscription-based product. To enhance customer experience, eGain reserves the right to make modifications to the Service. However, eGain commits to not materially reducing the Services core functionality.

1.4 Permissions

The Service includes customizable settings allowing Users to grant permissions to other Users to perform various tasks within the Service (“Permissions”). Customer is solely responsible to set and manage all Permissions, including determining which Users can permit or set such Permissions. eGain has no liability or responsibility for managing or setting Permissions. The Customer acknowledges that it is fully responsible for any breaches of this Agreement by itself, its Users, or its Affiliates and has the authority to negotiate this Agreement on behalf of its Affiliates.

1.5 Free Trial

If Customer registers for a free trial (“Trial Service”), eGain will make the Trial Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Trial Services, (b) the Service Commencement Date, or (c) termination by eGain in its sole discretion. Additionally, the Trial Service is provided “as-is” without any warranty and without any customer data obligations.

2. Restrictions

2.1 Customer’s Responsibilities

Customer shall ensure its Users and Affiliates are aware of and comply with the obligations and restrictions in this Agreement. Customer is responsible for all activity on its account and those of its Users, except where such activity results from unauthorized access due to vulnerabilities in the Service itself. The Customer is also responsible for all payment obligations under this Agreement, regardless of whether the use of the Service is by the Customer or its Affiliates. Any claim by an Affiliate against eGain must be brought by the Customer, not the Affiliate.

2.2 Use Restrictions

The Customer shall not nor permit, directly or indirectly, Users or third parties to: (a) allow unauthorized use, circumvent, or disclose the user authentication or security of the Services; (b) modify, translate, copy, or create derivative works of the Services or features or use the Services to make competitive Services ; (c) except as permitted by law, reverse engineer, decompile, or attempt to discover the source code of the Service; (d) sublicense, sell, rent, lease, distribute, or otherwise commercially exploit the Service; (e) infringe the intellectual property rights of any entity or person; (f) remove proprietary notices from the Service; (g) use the Service in violation of laws or regulations; (h) allow Service use to disrupt the Service; (i) store or transmit any content, data or information that is unlawful, malicious code, SPAM, tortious, or in violation of privacy rights; or (j) test the Service’s vulnerability without authorization. If eGain reasonably believes Customer’s use of the Service will significantly harm eGain or the Service’s security or integrity, eGain may suspend access to the Service. eGain will use reasonable efforts to notify the Customer regarding the suspension in a timely manner.

3. Third-Party Services

The Service may interface with third-party products, services, or applications that are not owned or controlled by eGain (“Third-Party Services”). Customer has the discretion to utilize these Third-Party Services in conjunction with the Service. If the Customer desires Third-Party Services that require login information, Customer will be responsible for providing their login information to eGain solely for the purpose of enabling eGain to enable the Third-Party Services. Customer affirms that they have the authority to provide such information without violating any terms and conditions governing their use of the Third-Party Services. eGain does not endorse any Third-Party Services. eGain expressly disclaims all representations and warranties concerning Third-Party Services. Customer must direct any warranty claims or other disputes directly to the providers of the Third-Party Services.

4. Financial Terms

4.1 Fees

Customer agrees to pay for access to and use of the Service as detailed in the applicable Order (“Fees”). All Fees will be charged in U.S. dollars, unless otherwise stated in the applicable Order. Payment obligations are not cancellable or refundable, except as explicitly stated in this Agreement. eGain reserves the right to modify its Fees or introduce new fees at its discretion.

4.2 Payment

eGain, either directly or through its third-party payment processor (“Payment Processor”), will bill the customer for the Fees using the credit card or ACH payment information (“Payment Information”) provided by the customer. Customer hereby authorizes eGain to use the Payment Information for any Fees provided under the Order, including recurring Fees until terminated. It is the customer’s responsibility to ensure that eGain has current and accurate Payment Information. Failure to provide accurate Payment Information may lead to a suspension of access to the Services. eGain also reserves the right to offset any Fees owed by the customer. Payments through a Payment Processor, will be subject to the Payment Processor’s terms, conditions, and privacy policies, in addition to this Agreement. eGain is not responsible for errors or omissions by the Payment Processor. eGain reserves the right to correct any errors made by the Payment Processor, even if payment has already been requested or received.

4.3 Taxes

Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes, imposed by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with their purchases. If eGain is obligated to pay or collect Taxes for which the Customer is responsible, eGain will invoice the Customer for such Taxes unless the Customer provides eGain with a valid tax exemption certificate authorized by the appropriate taxing authority beforehand. eGain is solely responsible for taxes based on eGain’s income, property, and employees.

4.4 Suspension

eGain may suspend access to the Service if Fees are overdue, until overdue amounts are paid. If an initial charge is unsuccessful, Customer authorizes multiple attempts to complete the payment of Fees. Customer must contact eGain within sixty (60) days from the first billing statement, if Customer believes there may be an error, to request an adjustment or credit. Upon receiving a dispute notice, eGain will review and provide the customer with an evidence based written decision. If it is determined that the billed amounts are due, then Customer must pay these amounts within ten (10) days of eGain’s written decision.

5. Term and Termination

5.1. Agreement Term

This Agreement takes effect on the Service Commencement Date and remains effective for the duration of the Service Term (“Initial Service Term”), after which the Order will automatically renew for monthly periods, each a (“Renewal Service Term”) collectively the (“Term”). Customer may opt not to renew their Order by (a) clicking “Cancel” on the website; or (b) notifying eGain at [email protected] and receiving eGain’s written confirmation of the cancellation.

5.2. Termination

Either party may terminate this Agreement with written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after receipt of such notice. eGain may terminate a Customer’s access to the Free Version at any time upon notice.

5.3. Effect of Termination

If the Customer terminates this Agreement due to an uncured breach by eGain, eGain will refund any unused, prepaid Fees for the remainder of the Term. If Customer terminates this Agreement due to any reason other than eGain uncured breach or eGain terminates this Agreement due to an uncured breach by the Customer, the Customer will pay any unpaid Fees covering the remainder of the Term within 30 days of the date of termination. No termination will relieve the Customer of the obligation to pay any Fees payable to eGain for the period prior to the effective date of termination. Upon termination, all rights and licenses granted by eGain will cease immediately, and the Customer shall cease all access and use of the Service. Customer acknowledges that within thirty (30) days of termination Customer Data may be deleted and eGain will have no further obligation to provide Customer Data.

5.4. Survival

Sections 1.3; 3; 4; 5; 6; 7; 8; 9; and 10. will survive any termination or expiration of this Agreement.

6. Warranties and Disclaimers

6.1. Warranties

Customer represents and warrants that all Customer Data submitted by Customer or Users comply with all applicable laws, rules, and regulations.

6.2. Warranty Disclaimer

Except as expressly stated herein, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and eGain expressly disclaims any and all warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Customer acknowledges that eGain does not warrant that the services will be uninterrupted, timely, secure, or error-free. Some jurisdictions do not allow the disclaimer of certain warranties, so the foregoing disclaimers may not apply to the extent prohibited by law.

7. Limitation of Liability

Notwithstanding any provision to the contrary, eGain will not be liable for any indirect, special, incidental, consequential damages, or damages based on the use or access, interruption, delay, or inability to use the service, lost revenues or profits, loss of business or goodwill, data corruption, or system failures, regardless of the legal theory. Further, eGain’s total liability will not exceed the total fees paid for the service during the twelve (12) months prior to the claim. These limitations apply regardless of whether eGain has been advised of the possibility of such damages.

8. Confidentiality

8.1 Definition

Each party (the “Receiving Party”) recognizes that the other party (the “Disclosing Party”) may share business, technical, or financial information pertaining to the Disclosing Party’s operations that, due to the nature of the information or the context of disclosure, is reasonably considered confidential (“Confidential Information”). Specifically, eGain Confidential Information includes non-public information about features, functionality, or performance of the Service. For Customer, Confidential Information includes User Information, Payment Information, and Customer Data. This Agreement, along with all related Orders, is considered Confidential Information of both parties. However, Confidential Information does not include information that: (a) becomes publicly available through no fault of the Receiving Party; (b) was known to the Receiving Party before disclosure by the Disclosing Party without an obligation of confidentiality; (c) is received from a third party without an obligation of confidentiality; or (d) was independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information.

8.2 Protection and Use of Confidential Information

The Receiving Party must: (a) protect the Disclosing Party’s Confidential Information with at least the same degree of care it uses for its own similar information, but no less than a reasonable level of care; (b) restrict access to Confidential Information to personnel, affiliates, subcontractors, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need this information in relation to this Agreement and who are bound by confidentiality obligations similar to those in this Agreement; (c) not disclose any Confidential Information to third parties without prior written permission; and (d) use the Confidential Information solely to fulfill obligations under this Agreement. This does not prevent sharing of Agreement terms or the other party’s name with potential investors or buyers under standard confidentiality terms.

8.3 Compelled Access or Disclosure

If required by law, the Receiving Party may access or disclose the Disclosing Party’s Confidential Information, provided that Receiving Party notifies the Disclosing Party in advance (when legally permissible) such that the Disclosing may contest the disclosure.

8.4 Feedback

Customer may occasionally offer feedback on the Service (“Feedback”). eGain may choose to act on this Feedback, and Customer grants eGain a royalty-free, worldwide, perpetual, irrevocable, fully transferable, and sublicensable license to use, disclose, modify, create derivative works from, distribute, display, and exploit any Feedback as eGain sees fit, without any obligation or restriction, except for not identifying the Customer as the source of Feedback.

9. Data

9.1 User Information

Customer and Users must provide information like names, email addresses, usernames, IP addresses, browsers, and operating systems (“User Information”) to access the Service. Customer authorizes eGain and its subcontractors to store, process, and retrieve User Information to provide the Service. Customer guarantees they have the necessary rights to provide User Information to eGain for processing as described in this Agreement. Customer is liable for the User Information and any use of their credentials.

9.2 Customer Data

Customer grants eGain a non-exclusive, worldwide, royalty-free, transferable license to use, process, and display Customer Data solely to provide the Service. Beyond the rights granted here, Customer retain all rights to Customer Data, with no implied licenses under this Agreement.

9.3 Service Data

eGain collects aggregated and anonymized data and analytics on the Service performance, feature usage, and operations (“Service Data”) on use of the Service. eGain owns all rights to and may freely use this Service Data but will not identify Customer or Users as its source.

10. General Terms

10.1 Force Majeure

eGain shall not be liable for any failure or delay in performing its obligations hereunder caused by events beyond its reasonable control, including but not limited to failures of, strikes (excluding those involving eGain’s employees), riots, fires, natural disasters, wars, or government actions.

10.2 Relationship of the Parties

The Parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, general agency, fiduciary or employment relationship between the Parties. Customer is solely responsible for determining whether the Services meet Customer’s technical, business, or regulatory requirements.

10.3 No Third-Party Beneficiaries

There are no third-party beneficiaries under this Agreement.

10.4 Email Communications

Notices under this Agreement will be communicated via email, although eGain may choose to provide notices through the Service instead. Notices to eGain must be directed to [email protected], while notices to Customer will be sent to the email addresses provided by them through the Service. For either delivery method, Notices are considered received the next business day after delivery.

10.5 Amendment and Waivers

eGain may modify the terms of this Agreement unilaterally, provided that Customer are notified at least thirty (30) days before such changes take effect, with changes posted prominently, for example, on the eGain website terms page. Neither party’s delay nor failure to exercise any right under this Agreement will be deemed a waiver of that right. Waivers must also be in writing and signed by the party granting the waiver.

10.6 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

10.7 Assignment

Neither party may assign or delegate their rights or obligations under this Agreement without the other party’s prior written consent, except that eGain may do so without consent to its Affiliates, for mergers, acquisitions, corporate reorganizations, or sales of substantially all assets. Any unauthorized assignment will be void. This Agreement binds and benefits the parties, their successors, and permitted assigns.

10.8 Governing Law and Venue

This Agreement will be governed by the laws of the State of California, USA, excluding its conflict of laws principles. Disputes arising under this Agreement will be resolved in the state or federal courts in Santa Clara County, California, to which both Parties consent to jurisdiction and venue. There is a waiver of any right to a jury trial for disputes arising under this Agreement. The prevailing Party in any enforcement action is entitled to recover its reasonable costs and attorney fees.

10.9 Entire Agreement

This Agreement, including any referenced documents or Orders, constitutes the full agreement between eGain and the Customer, superseding all prior discussions, agreements, and understandings of any nature. This ensures clarity and completeness in the mutual expectations and obligations of the parties involved.