This Terms of Use Agreement (the “Agreement”) governs the use of the Association of Governing Boards of Universities and Colleges (“AGB”)’s “AGB Board Bot” feature and is effective upon the first use or access to the AGB Board Bot application (as defined below). This Agreement is a contract between a AGB Board Bot User and AGB (each a “Party”, and collectively the “Parties”). You acknowledge that you are agreeing to this Agreement on behalf of yourself or an organization, and you represent and warrant that you have the authority to bind the organization to this Agreement. If you do not agree to the terms of this Agreement, do not access or use the AGB Board Bot feature.

1. Definitions

As used in this Agreement, the following definitions shall apply:

“Affiliate” is included in the term Organization, Party, or Parties, and means any business entity that, from time to time, is controlled by or under common control with an Organization or is an Organization’s authorized agent to use or procure services and products under this Agreement.

“Aggregated Data” means data which is based on or derived from Member Data, and which has been aggregated and de-identified in a manner that does not designate or identify Member or its Authorized Users as the source of the data.

“AGB Board Bot” is a computer application, using artificial intelligence, on AGB’s website that simulates and processes human conversation allowing AGB Board Bot users to interact with digital devices as if they were communicating with a real person.

“AGB Board Bot User(s)” means individuals or organizations who use the AGB Board Bot feature to ask questions, obtain information, or retrieve content.

“Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party, or which is described in Section 7 of this Agreement.

“Member Data” means any AGB Board Bot User’s information, documents, or electronic files that are provided to AGB hereunder.

“Documentation” means any online or printed user manuals, functional specifications that are provided to Member by AGB, and any derivative works arising from or related to the foregoing.

“Enrichment Data” means user interaction and behavioral data derived from AGB Board Bot Users’ interactions with the application and any communications received from them. Enrichment Data includes, but is not limited to, clicks, opens of messages, and/or records, and time spent consuming specific pieces of content and any generated data that is created by the application using other Enrichment Data.

“Error” means any reproducible material failure of the application to function in accordance with its Documentation.

“Intellectual Property” means patents, copyrights, trade secrets, trademarks (including trade names, logos and service marks) and confidential know-how, in each case whether registered or unregistered, and including any applications or registrations for any of these, and the equivalent, on a world-wide basis, and all rights related thereto.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Organization” means Associations using the AGB Board Bot application, including their Affiliates and Authorized User(s).

“Support Services” means maintenance and technical support services for the application.

“Update” means any patch, bug fix, release, version, modification, or successor to the application.

“User Data” means information, documents, or electronic files that are provided, uploaded, or approved to be uploaded by a user, whether in electronic form or otherwise.

“Work Product” means all work created under this Agreement by AGB.

2. AGB Board Bot

2.1 Provision of AGB Board Bot. AGB shall make AGB Board Bot available to individual and organization users pursuant to this Agreement. Individual and organization users agree that the use of AGB Board Bot is not contingent on the delivery of any future functions or features or on any oral or written public comments made by AGB, its affiliates or representatives, regarding future functionality or features.

2.2 AGB Board Bot Source Data. AGB Board Bot is trained on the following AGB content sources:

• AGB books (published in the last 15 years)
• AGB reports (published in the last 15 years)
• AGB board of directors statements (published in the last 13 years)
• AGB Trusteeship articles (published in the last 9 years and select articles published prior)
• Select AGB podcast transcripts
• AGB FAQ documents (published in the last five years)
• AGB orientation transcripts (used in the AGB online board member orientation)
• AGB board professional certificate program (transcripts of videos used in the board professional certificate program)

AGB Board Bot is not trained on data provided by AGB corporate partners.

3. License

3.1 AGB hereby grants to AGB Board Bot Users a non-exclusive, non-transferable, revocable license to use the AGB Board Bot application for their internal business purposes (the “Authorized Use”). For any use of the AGB Board Bot application that is not an Authorized Use, AGB Board Bot users must obtain the prior written approval of AGB for such uses.

3.2 AGB Board Bot Users shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the application; (ii) modify, create derivative works based upon, or translate the application; (iii) transfer or otherwise grant any rights in the application in any form to any other party, nor shall AGB Board Bot Users attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.

3.3 AGB Board Bot Users are solely responsible for maintaining the security of all user names and passwords grant to them, for the security of its information systems used to access the application, and for their Users’ compliance with the terms of this Agreement. AGB has the right at any time to terminate or suspend access to the application to any Authorized User if AGB reasonably believes that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the application, AGB (including its officers, directors, employees and agents), and AGB’s members.

3.4 By using the AGB Board Bot application, AGB Board Bot Users grant to AGB a royalty-free, worldwide, fully transferable, irrevocable, and perpetual license to use or incorporate any of their recommendations, improvement suggestions, or feedback, including utilization data, provided by AGB Board Bot Users.

4. Support Services

4.1 AGB may, at its sole discretion, provide to AGB Board Bot Users technical support services for the application on a reasonable basis.

4.2 AGB may, at its sole discretion, apply updates to the application from time to time.

4.3 AGB shall, at its sole discretion, use commercially reasonable efforts to correct Errors to the application or to provide a reasonable workaround as soon as is possible during AGB’s normal business hours.

4.4 AGB is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (i) the acts, omissions, negligence or willful misconduct of AGB Board Bot Users; (ii) any failure or defect of AGB Board Bot Users’ or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of AGB’s or its managed services provider’s point of presence); or (iii) a Force Majeure event as defined in Section 12.6.

4.5 AGB is not obligated to provide services for (i) development of new features, or (ii) any service change requested by AGB Board Bot Users and not agreed to by AGB in writing.

5. Intellectual Property

5.1 AGB Board Bot Users acknowledge that they obtain no ownership rights in the application, or any of its related Services, Software, or Work Product. All rights to the application Services, Software, and/or Work Product, including but not limited to any accompanying technical documentation, Confidential Information, trade secrets, trademarks, service marks, patents, copyrights, and other proprietary information, are, shall be, and will remain the sole property of AGB or any third party from whom AGB has licensed such software or technology.

5.2 By using the AGB Board Bot application, AGB Board Bot Users grant to AGB, a royalty-free, non-exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify and display the AGB Board Bot User Data solely for purposes of providing the application and related services to AGB Board Bot Users hereunder.

5.3 AGB Board Bot Users hereby grant to AGB a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Aggregated Data in connection with developing, providing, maintaining, supporting, or improving the application or any of AGB’s current and future products and services, or for any other lawful purpose.

5.4 AGB owns all right, title and interest in the Enrichment Data. AGB Board Bot Users acknowledge that AGB utilizes Enrichment Data across its entire service to benefit the experience of its members and all AGB Board Bot Users and that Enrichment Data will not be deleted upon termination of this Agreement, except to the minimum extent required by applicable law. AGB agrees that it shall not contact AGB Board Bot Users using email addresses provided by them and will retain those emails solely for the purpose of associating previously generated Enrichment Data for future use if another AGB Board Bot User already has said email address in their own database. AGB further represents that under no circumstances will it sell AGB Board Bot Users email addresses to any 3rd party.

6. Warranty

6.1 The AGB Board Bot application, and all of its content, applications, software, functions, and materials, is provided “as is,” “with all faults” and without any warranties of any kind, express or implied. AGB, and its, directors, officers, employees, representatives and affiliates, expressly disclaim any and all warranties in any way related to the AGB Board Bot application, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, title, merchantability, data accuracy, system integration, and informational content.

6.2 In addition to the disclaimers in Section 6.1 above, AGB and its, directors, officers, employees, representatives and affiliates, also make no warranties or representations regarding operation of the AGB Board Bot application, the accuracy or reliability of the information provided by the application, or the results of the use of the materials available on any other website linked to AGB Board Bot. The application materials may be out of date, and AGB makes no commitment to update such materials. AGB Board Bot Users also acknowledge that AGB does not operate or control the internet. AGB does not warrant that the files available for downloading, if any, will be free from infection, viruses, worms, trojan horses, or other malicious code that manifest contaminating or destructive properties. AGB also does not warrant that AGB Board Bot, its related software, materials, products, or services will be uninterrupted or error-free or that any defects in software, materials, products, or services will be corrected.

6.3 AGB Board Bot Users agree to assume all obligations: (i) related to the use of AGB Board Bot to achieve its intended results, and (ii) related to any decisions or advice made or given as a result of the use or application of AGB Board Bot or any materials retrieved from the application, including those to any third party, for the content, accuracy, and review of such results.

7. Confidential Information

7.1 Each receiving Party understands that the disclosing Party has disclosed or may disclose confidential or proprietary business, technical or financial information relating to the disclosing Party’s business (hereinafter referred to as “Confidential Information” of the disclosing Party). In addition to Confidential Information as defined in Section 1 of this Agreement, the Confidential Information of AGB includes non-public information regarding features, functionality and performance of the application or Services. The receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The disclosing Party agrees that the foregoing shall not apply with respect to any information after the later of five (5) years following the disclosure thereof, or the termination of this Agreement, or any information that the receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed by the receiving Party prior to its disclosure and without use of any Confidential Information of the disclosing Party or (e) is required to be disclosed by law.

8. Overall Limitation of Damages

8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, AGB AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND AGB’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED A TOTAL OF FIVE HUNDRED DOLLARS ($500.00), IN EACH CASE, WHETHER OR NOT AGB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Termination.

9.1 AGB may terminate this Agreement immediately and without notice in the event that any AGB Board Bot User breaches any term or condition of this Agreement, or discontinues use of the AGB Board Bot application.

10. Rights Upon Termination.

10.1 In the event of termination as described in Section 9, AGB will have no obligation to maintain or provide any Member or User Data and may, upon written request, unless legally prohibited, delete all User Data in its systems or otherwise in its possession or under its control.

10.2 The termination of this Agreement shall not extinguish any rights or obligations of the parties relating to protection of Confidential Information or to the protection of AGB’s intellectual property rights.

11. Assignment.

11.1 AGB Board Bot Users shall not sell, pledge, assign, sublicense, or otherwise assign, transfer or share their rights or delegate their obligations under this Agreement without the prior written consent of AGB. Any attempt to sell, pledge, assign, sublicense or otherwise transfer in violation hereof shall be void and of no force or effect. AGB may assign its rights and delegate its duties hereunder at any time without the consent of AGB Board Bot Users.

12. General Provisions

12.1 Applicable Law. The parties agree that this Agreement and interpretation thereof shall be governed, construed and performed in accordance with the laws of the District of Columbia, exclusive of its choice of law provisions. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply to this Agreement.

12.2 Required Consents. AGB Board Bot User warrants that it has obtained lawful permission to use all hardware and software required in order for the services to take place.

12.3 Modification. This Agreement may be modified or amended at any time and in the sole discretion of AGB, by updating its posting. In addition, AGB may modify the AGB Board Bot application and its related materials, features and services at any time without prior notice to AGB Board Bot Users. By using the AGB Board Bot application, AGB Board Bot Users agree to be bound by any such revisions.

12.4 No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement.

12.5 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement shall be in writing and shall be effective upon the later of (a) personal delivery, or (b) the second business day after mailing.

12.6 Force Majeure. AGB shall not be deemed in default of this Agreement to the extent that performance of any of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond its control (“Force Majeure”). In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of twelve months.

12.7 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, or undertakings other than those expressly set forth in this Agreement and any related Statements of Work.

12.8 Equitable Remedies. The parties recognize that money damages may not be an adequate remedy for any breach or threatened breach of any obligation hereunder by a AGB Board Bot User involving intellectual property or Confidential Information. The parties therefore agree that, in addition to any other remedies available hereunder, by law or otherwise, AGB and any third party from whom AGB has licensed software or technology shall be entitled to an injunction against any such continued breach by a AGB Board Bot User of such obligations.

12.9 Relationship of the Parties. AGB shall perform the Services as an independent contractor. Nothing in this Agreement nor in the course its performance shall be construed to create a relationship of principal and agent, joint venture, partnership, association, or employment between the parties. Neither party shall represent to any third party that it is the agent or employee of the other.

12.10 Exclusive Jurisdiction and Venue. Any cause of action arising out of or related to this Agreement, including an action to confirm or challenge an arbitration award, may only be brought in the courts of applicable jurisdiction in the District of Columbia, and the parties hereby submit to the jurisdiction and venue of such courts.

12.11 Dispute Resolution. Except for actions seeking Equitable Remedies as described in Section 12.8, any dispute occurring or relating to this Agreement, or breach thereof, shall be determined by binding arbitration in accordance with the arbitration rules of the American Arbitration Association. Any arbitration shall proceed in the District of Columbia. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction thereof.

12.12 Validity of Provisions. In the event any provision, or any part or portion of any provision, of this Agreement shall be held to be invalid, void or otherwise unenforceable, that provision shall be deemed modified so as to carry out the intent of the parties to the maximum extent permitted by law, and shall not affect the remaining part or portion of that provision, or any other provision hereof.

12.13 International Use. AGB makes no representation that the AGB Board Bot application, or its related materials, features or services, are appropriate or available for use in locations outside the United States. AGB Board Bot Users who choose to access the AGB Board Bot application from locations outside the United States do so at their own initiative and are solely responsible for compliance with local laws. If a AGB Board Bot User provides data about itself or any individuals residing outside the United States (Personal Data) such data may be stored on servers in the United States. It is the AGB Board Bot User’s responsibility to ensure that it has all required authorizations to enter this information. AGB acts as the owner of such Personal Data.

12.14 Property Rights. AGB’s internet web site, https://agb.org/, where the AGB Board Bot application resides, is protected by law, including, but not limited to, United States copyright law. The contents of the AGB Board Bot application, including but not limited to text, photographs, graphics, and source code, are copyrighted materials of AGB or its licensors, all rights reserved. The name “AGB Board Bot”, and its associated graphics, are trademarks, service marks and/or trade dress of AGB or its licensors, and users may not copy, imitate or use the trademarks, service marks, or trade dress in whole or in part, for any purpose, including without limitation in any marketing or advertising materials, without the express prior written consent of AGB.