Last updated: October 30, 2023
Welcome to the Supernormal Platform. Please read these End User Terms (these “User Terms”) carefully because they govern your (“Customer” or “you”) access and use of the Supernormal Platform (as defined below). If you are accessing and using the Supernormal Platform on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these User Terms. In that case, “Customer” and “you” will refer to that entity. To make these User Terms easier to read, the terms “Supernormal,” “we,” “our” and “us” include Supernormal Technologies, Inc. and our affiliates and subsidiaries.
By using the Supernormal Platform, you agree to be bound by these User Terms. If you do not agree to be bound by these User Terms, do not use the Supernormal Platform.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE USER TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND SUPERNORMAL THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 9 “DISPUTE RESOLUTION FOR INDIVIDUALS”, AND SECTION 10 “DISPUTE RESOLUTION FOR ENTITIES” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
a. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ access and/or use of the Supernormal Platform, including, without limitation, any usage data or trends with respect to the Supernormal Platform.
b. “Authorized User” means an employee or contractor whom Customer has authorized to access and use the Supernormal Platform.
c. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Supernormal Platform or to Supernormal in connection with Customer’s access and/or use of the Supernormal Platform, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Supernormal and made available through or in connection with the Supernormal Platform.
d. “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Supernormal to Customer (including any revised versions thereof) relating to the Supernormal Platform, which may be updated from time to time upon notice to Customer.
e. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
f. “Licensed Seats” means the number of Authorized Users permitted to use the Supernormal Platform based on Customer’s subscription tier, if applicable.
g. “Supernormal Platform” means Supernormal’s proprietary AI-based software-as-a-service platform, and all associated technology, in object code format only, which is made available by Supernormal to Customer and is intended to integrate with Customer’s user applications and enable Customer to record and automatically transcribe video calls and take notes based on the conversations on such calls.
h. “Supernormal IP” means the Supernormal Platform, the underlying software provided in conjunction with the Supernormal Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Supernormal Platform, the Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
2.1 Supernormal Platform. Subject to the terms and conditions of these User Terms, Supernormal hereby grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 11.6) right to access and use the Supernormal Platform during the Term, solely for Customer’s internal business purposes, in accordance with, and subject to, the number of Licensed Seats.
2.2 Restrictions. Customer will not at any time and will not permit any third party (including, without limitation, Authorized Users) to, directly or indirectly: (a) access or use the Supernormal Platform in any manner beyond the scope of rights expressly granted in these User Terms; (b) modify or create derivative works of the Supernormal Platform or Documentation, in whole or in part; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Supernormal Platform, in whole or in part; (d) frame, mirror, sell, resell, rent or lease any access or use of the Supernormal Platform to any other party, or otherwise allow any party to access or use the Supernormal Platform for any purpose other than for the benefit of Customer in accordance with these User Terms; (e) access or use the Supernormal Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Supernormal or any third party, or that violates any applicable law; (f) interfere with, or disrupt the integrity or performance of, the Supernormal Platform, or any data or content contained therein or transmitted thereby; (g) access or search the Supernormal Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Supernormal Platform features provided by Supernormal for use expressly for such purposes; or (h) access or use the Supernormal Platform, Documentation or any other Supernormal Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Supernormal Platform.
2.3 Authorized Users. Customer will not allow any party other than Authorized Users to access or use the Supernormal Platform. Customer may permit Authorized Users to access and/or use the Supernormal Platform, provided that (a) the access and use, including the number of Authorized Users, does not exceed the number of Licensed Seats, and (b) Customer ensures each Authorized User complies with all applicable terms and conditions of these User Terms. Customer is responsible for all acts, omissions and obligations of Authorized Users in connection with the activities contemplated by these User Terms and/or the Supernormal Platform, as though such acts, omissions and/or obligations were those of Customer. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Supernormal Platform in accordance with customary security protocols, and will promptly notify Supernormal if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Supernormal Platform may only be accessed and used by the specific Authorized User for whom such account is created.
2.4 Third Party Services. Certain features and functionalities within the Supernormal Platform may allow Customer and its Authorized Users to integrate, interface or interact with compatible third-party services, products, technology and content, including but not limited to Zoom, Google Meet, and Microsoft Teams (collectively, without limitation, “Third-Party Services”) through the Supernormal Platform. Supernormal does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Supernormal Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Supernormal Platform.
2.5 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Supernormal reserves and, as between the Parties will solely own, the Supernormal IP and all rights, title and interest in and to the Supernormal IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
2.6 Support. Supernormal will provide reasonable technical support to Customer by electronic mail and/or phone in connection with its use of the Supernormal Platform on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Eastern Time, with the exception of U.S. federal holidays (“Support Hours”), subject to the following conditions: (a) prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (b) Customer will reasonably cooperate with Supernormal support staff as needed to resolve the issue. Customer may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org or contacting Customer’s dedicated account manager.
2.7 Feedback. From time to time, Customer or its employees, contractors, or representatives may provide Supernormal with suggestions, comments, feedback or the like with regard to the Supernormal Platform (collectively, “Feedback”). Customer hereby grants Supernormal a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Supernormal’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Supernormal Platform.
2.8 Changes to Terms or Platform. We may update these User Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated User Terms either on our website, within the Suprnormal Platform or through other communications. It’s important that you review these User Terms whenever we update them or you use the Supernormal Platform. If you continue to use the Supernormal Platform after we have posted updated User Terms, you are agreeing to be bound by the updated User Terms. If you don’t agree to be bound by the updated User Terms, then you may not use the Supernormal Platform anymore. Because the Supernormal Platform is evolving over time, we may change or discontinue all or any aspect of the Whoosh Platform, at any time and without notice, at our sole discretion.
3.1 Fees. You agree to pay Supernormal all of the fees agreed upon in connection with your registration and/or use of the Supernormal Platform, if applicable.
3.2 Payments. All payments made for the Supernormal Platform to Supernormal will be made in U.S. dollars by credit card and will be non-refundable. You hereby authorize Supernormal, through a third-party credit card processor, to charge your credit card for the applicable fees. The Supernormal Platform will only be made available if the agreed upon fees are paid in full, and access to the Supernormal Platform may be suspended for the time that any such fees are due and not paid.
3.3 Taxes. You will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Supernormal hereunder, other than any taxes imposed on Supernormal’s income. Without limiting the foregoing, in the event you are required to deduct or withhold any taxes from the amounts payable to Supernormal hereunder, you shall pay an additional amount, so that Supernormal receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4.1 Definition. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with these User Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Supernormal Platform and the Documentation will be deemed Confidential Information of Supernormal. However, Confidential Information will not include any information or materials that: (a) are at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (b) are rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (c) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (d) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
4.2 Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these User Terms; provided that Supernormal may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under these User Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these User Terms, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
5.1 Ownership. Supernormal acknowledges that, as between Customer and Supernormal and except as set forth in Section 5.2, Customer owns and retains all right, title and interest in and to all Customer Materials.
5.2 License. Notwithstanding anything in these User Terms to the contrary, Customer hereby grants to Supernormal (a) a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Supernormal Platform, and (b) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for related internal operations and functions such as operational analytics and reporting, internal financial reporting and analysis, audit functions, archival, and other internal business purposes.
5.3 AI Models. Supernormal is continuously training and improving its artificial intelligence and machine learning models (the “Models”) to provide services with the highest possible level of accuracy and reliability. With that in mind, Customer acknowledges: (a) Models may learn from the de-identified Customer Materials (provided that under no circumstances will the Models include any identifiable information regarding Customer or any individuals which are the subject of Customer’s data); and (b) the Models (new or pre-existing), and any improvements thereto, will be and remain part of the Supernormal Platform and property of Supernormal. The Parties acknowledge and agree that no Subcontractors will have the right to use the Customer Materials for training purposes.
5.4 Data Security. Each Party will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with these User Terms, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.
5.5 Data Processing Addendum; Privacy Notice. If Customer is a company or other legal entity, each party shall comply with the Data Processing Addendum attached hereto as Attachment 1, which is incorporated herein by reference. If Customer is not a company or other legal entity, then Supernormal may process personal information in accordance with the Privacy Notice, and the Data Processing Addendum does not apply.
6.1 Mutual Warranties. Each Party hereby represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into these User Terms and (b) the execution, delivery and performance of these User Terms and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUPERNORMAL PLATFORM AND OTHER SUPERNORMAL IP ARE PROVIDED ON AN “AS IS” BASIS, AND SUPERNORMAL MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE SUPERNORMAL IP, THE SUPERNORMAL PLATFORM OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPERNORMAL HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SUPERNORMAL HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUPERNORMAL PLATFORM WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
7.1 Supernormal Indemnification. Subject to Section 7.2, Supernormal will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s authorized access or use of the Supernormal Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Supernormal (including reasonable attorneys’ fees) resulting from such Claim.
7.2 Exclusions. Supernormal’s obligations under Section 7.1 will not apply if the underlying third-party Claim arises from or as a result of: (a) Customer’s breach of these User Terms, negligence, willful misconduct or fraud; (b) any Customer Materials; (c) Customer’s failure to use any enhancements, modifications, or updates to the Supernormal Platform that have been provided by Supernormal; (d) modifications to the Supernormal Platform by anyone other than Supernormal; or (e) combinations of the Supernormal Platform with software, data or materials not provided by Supernormal.
7.3 IP Remedies. If Supernormal reasonably believes the Supernormal Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Supernormal may, at its sole option and expense use commercially reasonable efforts to: (a) modify or replace the Supernormal Platform, or any component or part thereof, to make it non-infringing; or (b) procure the right for Customer to continue using the Supernormal Platform. If Supernormal determines that neither alternative is commercially practicable, Supernormal may terminate these User Terms, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Supernormal will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Supernormal Platform.
7.4 Customer Indemnification. Subject to Section 7.5, Customer will defend Supernormal against Claims arising from (a) any Customer Materials, including, without limitation, (i) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (i) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (b) any of Customer’s products or services; and (c) access or use of the Supernormal Platform by Customer or its Authorized Users in a manner that is not in accordance with these User Terms or the Documentation, including, without limitation, any breach of the license restrictions in Section 2.2, and in each case, will indemnify and hold harmless Supernormal against any damages and costs awarded against Supernormal or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
7.5 Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8.1 Exclusion of Damages. NEITHER SUPERNORMAL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SUPERNORMAL PLATFORM WILL BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE THE SUPERNORMAL PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUPERNORMAL OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.2 Total Liability. IN NO EVENT WILL SUPERNORMAL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE OR ACCESS THE WHOOSH PLATFORM OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100).
8.3 Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SUPERNORMAL AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
9.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these User Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Supernormal Platform (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Supernormal agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these User Terms, and that you and Supernormal are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these User Terms.
9.2 Exceptions and Opt-out. As limited exceptions to Section 9.1 above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights may be resolved in court and need not be resolved through arbitration; and (iii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at email@example.com within thirty (30) days following the date you first agree to these User Terms.
9.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these User Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
9.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
9.5 Class Action Waiver. YOU AND SUPERNORMAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
9.6 Effect of Changes on Arbitration. Notwithstanding the provisions of Section 4 “Changes to Terms or Platform” above, if we change any of the terms of this Section 9.6 “Dispute Resolution For Individuals” after the date you first accepted these User Terms (or accepted any subsequent changes to these User Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email or other communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the terms of this Section 9.6 “Dispute Resolution for Individuals” as of the date you first accepted these User Terms (or accepted any subsequent changes to these User Terms).
9.7 Severability. With the exception of any of the provisions in Section 9.5 of these User Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these User Terms is invalid or unenforceable, the other parts of these User Terms will still apply.
If you are accessing and using the Supernormal Platform on behalf of a company or other legal entity, any Dispute will be resolved exclusively accordingly to the process set forth in Section 9 (Dispute Resolution for Individuals), expressly including the class action waiver, except that, to the extent legally permitted, (a) each party will be responsible for their own filing, administrative, arbitrative and similar fees, (b) the losing party will pay the prevailing party for all costs and attorney’s fees, and (c) the AAA Commercial Arbitration Rules will apply to any arbitration between us.
11.1 Term. These user terms apply to you for the duration of your access to the Supernormal Platform until (i) terminated by us or (ii) until you cease use of the Supernormal Platform.
11.2 Termination. We may terminate your access to and use of the Supernormal Platform, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending an email to us at email@example.com, or, if applicable, via the Supernormal Platform.
11.3 Survival. This Section 11.3 and Sections 1, 2.2, 2.4, 2.6, 3, 4, 5.2(b), 5.3, 5.6, 6.2, 7, 8, 9, 10, 11.4, 12 survive any termination or expiration of these User Terms.
11.4 Effect of Termination. Upon expiration or termination of these User Terms: (a) the rights granted pursuant to Section 2.1 will terminate; and (b) Customer will return or destroy, at Supernormal’s sole option, all Supernormal Confidential Information in its possession or control, including permanent removal of such Supernormal Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Supernormal’s request, certify in writing to Supernormal that the Supernormal Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination or entitle Customer to any refund.
12.1 Entire Agreement. These User Terms are the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.
12.2 Notices. All notices required or permitted under these User Terms will be in writing, will reference these User Terms, and will be sent to the address or email address set forth in the Order Form attached above or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 10.2. Such notices will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
12.3 Waiver. Either Party’s failure to enforce any provision of these User Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these User Terms will be effective unless it is in writing and signed by the Party granting the waiver.
12.4 Severability. If any provision of these User Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of these User Terms will remain in full force and effect.
12.5 Governing Law; Jurisdiction. These User Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these User Terms will be brought exclusively in the federal or state courts located in San Francisco, California, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
12.6 Assignment. Customer will not assign or transfer these User Terms, by operation of law or otherwise, without Supernormal’s prior written consent. Any attempt to assign or transfer these User Terms without such consent will be void. Supernormal may assign or transfer these User Terms without Customer’s consent to any third party. Subject to the foregoing, these User Terms is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
12.7 Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.8 Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under these User Terms (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics (including but not limited to SARS-CoV-2 (COVID-19) or any mutation thereof), epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
12.9 Publicity. Subject to the provisions of Section 4, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the Term, Supernormal may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Supernormal’s website and in its marketing materials to identify Customer as Supernormal’s customer, and for the purpose of providing the Supernormal Platform and any Professional Services to Customer, provided that Supernormal shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.
12.10 Subcontracting. Supernormal may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Supernormal remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in these User Terms, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Supernormal will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Supernormal.
12.11 Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Supernormal Platform or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
12.12 U.S. Government End Users. The Supernormal Platform, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these User Terms.
12.13 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in these User Terms will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
12.14 No Third-Party Beneficiaries. No provision of these User Terms are intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any party other than the Parties and their respective successors and assigns.
12.15 Counterparts. These User Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
This Data Processing Addendum (including its Exhibits) (“Addendum”) forms part of and is subject to the terms and conditions of the End User Terms (the “User Terms”) by and between Customer and Supernormal.
1. SUBJECT MATTER. This Addendum reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with the User Terms. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the User Terms. If and to the extent language in this Addendum or any of its Exhibits conflicts with the User Terms, this Addendum shall control. Nothing in this Addendum limits either Party’s rights or obligations under the User Terms.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
2.1 “Customer Personal Data” means Customer Materials that are Personal Data Processed by Supernormal on behalf of Customer.
2.2 “Data Protection Laws” means the applicable privacy and data protection laws, rules, and regulations to which the Customer Personal Data are subject. “Data Protection Laws” may include, but are not limited to, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act) (“CCPA”); the EU General Data Protection Regulation 2016/679 (“GDPR”) and its respective national implementing legislations; the Swiss Federal Act on Data Protection; the United Kingdom General Data Protection Regulation; and the United Kingdom Data Protection Act 2018 (in each case, as amended, adopted, or superseded from time to time).
2.3 “Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws.
2.4 “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.5 “Subprocessor(s)” means Supernormal’s authorized vendors and third-party service providers that Process Customer Personal Data.
3. PROCESSING TERMS FOR CUSTOMER PERSONAL DATA.
3.1 Documented Instructions. Supernormal shall Process Customer Personal Data to provide the Supernormal Platform in accordance with the User Terms, this Addendum, any applicable Order Form, and any instructions agreed upon by the parties. Supernormal will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
3.2 Authorization to Use Subprocessors. Customer hereby authorizes Supernormal to engage Subprocessors. Customer acknowledges that Subprocessors may further engage vendors.
3.3 Supernormal and Subprocessor Compliance. Supernormal shall (i) enter into a written agreement with Subprocessors that imposes data protection requirements for Customer Personal Data on such Subprocessors that are consistent with this Addendum; and (ii) remain responsible to Customer for Supernormal’s Subprocessors’ failure to perform their obligations with respect to the Processing of Customer Personal Data as required by applicable Data Protection Laws.
3.4 Confidentiality. Any person authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
3.5 Personal Data Inquiries and Requests. Where required by Data Protection Laws, Supernormal agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws.
3.6 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Supernormal agrees to provide reasonable assistance and information to Customer where, in Customer’s judgment, the type of Processing performed by Supernormal requires a data protection impact assessment or prior consultation with the relevant data protection authorities. Customer shall reimburse Supernormal for all non-negligible costs Supernormal incurs in performing its obligations under this Section.
3.7 Demonstrable Compliance. Supernormal agrees to provide information reasonably necessary to demonstrate compliance with this Addendum upon Customer’s reasonable request.
3.8 California Specific Terms. To the extent that Supernormal’s Processing of Customer Personal Data is subject to the CCPA, this Section shall also apply. Customer discloses or otherwise makes available Customer Personal Data to Supernormal for the limited and specific purpose of Supernormal providing the Supernormal Platform to Customer in accordance with the User Terms and this Addendum. Supernormal shall: (i) comply with its applicable obligations under the CCPA; (ii) provide the same level of protection as required under the CCPA; (iii) notify Customer if it can no longer meet its obligations under the CCPA; (iv) not “sell” or “share” (as such terms are defined by the CCPA) Customer Personal Data; (v) not retain, use, or disclose Customer Personal Data for any purpose (including any commercial purpose) other than to provide the Supernormal Platform under the User Terms or as otherwise permitted under the CCPA; (vi) not retain, use, or disclose Customer Personal Data outside of the direct business relationship between Customer and Supernormal; and (vii) unless otherwise permitted by the CCPA, not combine Customer Personal Data with Personal Data that Supernormal (a) receives from, or on behalf of, another person, or (b) collects from its own, independent consumer interaction. Customer may: (1) take reasonable and appropriate steps agreed upon by the parties to help ensure that Supernormal Processes Customer Personal Data in a manner consistent with Customer’s CCPA obligations; and (2) upon notice, take reasonable and appropriate steps agreed upon by the parties to stop and remediate unauthorized Processing of Customer Personal Data by Supernormal.
4. CROSS-BORDER TRANSFERS OF CUSTOMER PERSONAL DATA.
4.1 Cross-Border Transfers of Customer Personal Data. Customer authorizes Supernormal and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
4.2 EEA, Swiss, and UK Standard Contractual Clauses. If Customer Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to Supernormal in a country that has not been found to provide an adequate level of protection under applicable Data Protection Laws, the parties agree that the transfer shall be governed by Module Two’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“Standard Contractual Clauses”) as supplemented by Exhibit A attached hereto, the terms of which are incorporated herein by reference. Each party’s execution of the User Terms shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may carry out an audit of Supernormal’s policies, procedures, and records relevant to the Processing of Customer Personal Data. Any audit must be: (i) conducted during Supernormal’s regular business hours; (ii) with reasonable advance notice to Supernormal; (iii) carried out in a manner that prevents unnecessary disruption to Supernormal’s operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit shall be limited to once per year, unless an audit is carried out at the direction of a government authority having proper jurisdiction.
6. CUSTOMER PERSONAL DATA DELETION.
At the expiry or termination of the User Terms, Supernormal will delete all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Supernormal’s data retention schedule), except where Supernormal is required to retain copies under applicable laws, in which case Supernormal will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
7. PROCESSING DETAILS.
7.1 Subject Matter. The subject matter of the Processing is the Supernormal Platform pursuant to the User Terms.
7.2 Duration. The Processing will continue until the expiration or termination of the User Terms.
7.3 Categories of Data Subjects. Data subjects whose Customer Personal Data will be Processed pursuant to the User Terms.
7.4 Nature and Purpose of the Processing. The purpose of the Processing of Customer Personal Data by Supernormal is the performance of the Supernormal Platform.
7.5 Types of Customer Personal Data. Customer Personal Data that is Processed pursuant to the User Terms.
This Exhibit A forms part of the Addendum and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Exhibit A have the meaning set forth in the Addendum.
The parties agree that the following terms shall supplement the Standard Contractual Clauses:
1. SUPPLEMENTAL TERMS.
The parties agree that: (i) a new Clause 1(e) is added the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.”; (ii) a new Clause 1(f) is added to the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).”; (iii) the optional text in Clause 7 is deleted; (iv) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer may engage new subprocessors in accordance with Section 3.2 – 3.3 of the Addendum; (v) the optional text in Clause 11 is deleted; and (vi) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).
2. ANNEX I.
Annex I to the Standard Contractual Clauses shall read as follows:
A. List of Parties
Data Exporter: Customer.
Address: As set forth in the Notices section of the User Terms.
Contact person’s name, position, and contact details: As set forth in the Notices section of the User Terms.
Activities relevant to the data transferred under these Clauses: The Supernormal Platform.
Data Importer: Supernormal.
Address: As set forth in the Notices section of the User Terms.
Contact person’s name, position, and contact details: As set forth in the Notices section of the User Terms.
Activities relevant to the data transferred under these Clauses: The Supernormal Platform.
B. Description of the Transfer:
Categories of data subjects whose personal data is transferred: The categories of data subjects whose personal data is transferred under the Clauses.
Categories of personal data transferred: The categories of personal data transferred under the Clauses.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: Any sensitive data that is uploaded to the Supernormal Platform by data exporter.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Personal data is transferred in accordance with the standard functionality of the Supernormal Platform, or as otherwise agreed upon by the parties.
Nature of the processing: The Supernormal Platform.
Purpose(s) of the data transfer and further processing: The Supernormal Platform.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data importer will retain personal data in accordance with the Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: For the subject matter, nature, and duration as identified above.
C. Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
D. Additional Data Transfer Impact Assessment Questions:
Will data importer process any personal data under the Clauses about a non-United States person that is “foreign intelligence information” as defined by 50 U.S.C. § 1801(e)?
Not to data importer’s knowledge.
Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Clauses? For example, FISA Section 702. If yes, please list these laws:
As of the effective date of the Addendum, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, including FISA Section 702, and no such court action is pending.
Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain:
Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain:
E. Data Transfer Impact Assessment Outcome:
Taking into account the information and obligations set forth in the Addendum and, as may be the case for a party, such party’s independent research, to the parties’ knowledge, the personal data originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred pursuant to the Clauses to a country that has not been found to provide an adequate level of protection under applicable data protection laws is afforded a level of protection that is essentially equivalent to that guaranteed by applicable data protection laws.
F. Clarifying Terms:
The parties agree that: (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 7 of the Addendum; (iv) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses; (v) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; (vi) the information required under Clause 15.1(c) of the Clauses will be provided upon data exporter’s written request; and (vii) notwithstanding anything to the contrary, data exporter will reimburse data importer for all costs and expenses incurred by data importer in connection with the performance of data importer’s obligations under Clause 15.1(b) and Clause 15.2 of the Clauses without regard for any limitation of liability set forth in the User Terms.
3. ANNEX II.
Annex II of the Standard Contractual Clauses shall read as follows:
Data importer shall use commercially reasonable efforts to implement and maintain technical and organisational measures designed to protect personal data in accordance with the User Terms.
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the Addendum.
4. ANNEX III.
A new Annex III shall be added to the Standard Contractual Clauses and shall read as follows:
The UK Information Commissioner’s Office International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is incorporated herein by reference.
Table 1: The start date in Table 1 is the effective date of the Addendum. All other information required by Table 1 is set forth in Annex I, Section A of the Clauses.
Table 2: The UK Addendum forms part of the version of the Approved EU SCCs which this UK Addendum is appended to including the Appendix Information, effective as of the effective date of the Addendum.
Table 3: The information required by Table 3 is set forth in Annex I and II to the Clauses.
Table 4: The parties agree that Importer may end the UK Addendum as set out in Section 19.