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Terms of service
Last Updated May 31, 2024
This Terms of Service, and any terms, exhibits, schedules, policies, or addenda attached hereto or
referenced, or otherwise incorporated, herein (the “Agreement”) is entered into between the Parties and contains
the terms and conditions that govern the Customer’s access to and use of the Platform, and is a contract between
Equipat IP, LLC, a Georgia limited liability company (the “Company”), and you or the entity or organization that
you represent (the “Customer”), and, unless otherwise agreed by the Parties in writing, becomes binding and
effective on the Customer upon the earlier of: (i) the Customer’s signature of or consent to an Order Form; (ii) the
Customer’s or its Authorized User’s access and use of the Platform; or (iii) Customer’s or its Authorized User’s
clicking of an “I Accept,” “Sign Up” or similar button or checkbox referencing this Agreement (the “Effective
Date”). Capitalized terms not otherwise defined in this Agreement have the respective meanings assigned to them
in Section 1. Throughout this Agreement, the Company and the Customer may be referred to herein, individually,
as a “Party”, or collectively, as the “Parties”.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, THE CUSTOMER AND THE COMPANY AGREE THAT DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.
WHEREAS, the Company provides a Platform (as defined below) which, through the use and assistance of the Natural Language AI Model (as defined herein), assists with the patent drafting process, as further detailed herein; and
WHEREAS, the Customer desires to obtain a license to use the Platform, on a subscription basis, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Customer agree as follows:
1. Definitions.
In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
“AI” means artificial intelligence.
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“API” means an application programming interface.
“Authorized Users” means individuals, including the Customer’s employees, consultants, contractors, and agents, who are provided access to the Platform by the Customer and an account to access the same, pursuant to the Customer’s Subscription to the Platform and such applicable Order Form.
“Customer Data” means any documents, text, information, data, code, content, materials, writings, or anything of a similar nature, that are collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, to generate certain Output, and for the avoidance of doubt, shall encompass any Custom Prompts developed by the Customer within the Platform transmitted by and through the Platform, via the Natural Language AI Model, to generate certain Output, and for the avoidance of doubt, shall encompass any Custom Prompts developed by the Customer within the Platform.
“Documentation” means the documentation that is provided to the Customer that describes the then-current specifications, functions, and features of the Platform, in any form.
“Intellectual Property” means the property of a Party that is protected in any manner by Intellectual Property Rights.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
“Law” means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to such Person.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Natural Language AI Model” means OpenAI API, and its related AI model, currently used by the Platform to process and analyze Customer Data in providing the Output, and includes any other natural language AI models which may be offered/provided by the Company, from time to time, for utilization by customers in generating Output.
“OpenAI” means OpenAI, LP, an AI research and deployment nonprofit that has developed a publicly- accessible API for generating natural language based on AI models.
“Order Form” means an applicable order form or pricing/payment page, which may be displayed via the Company’s website, which describes the Subscription, the Subscription Term, etc. to be provided to the Customer which is: (a) executed by the Company and the Customer, or (b) which is consented to by the Customer, including by way of click-through consent.
“Output” means an AI-generated textual response to Customer’s submission of Customer Data and direction provided by Customer’s provided/developed Custom Prompts via the Platform and as generated via the Natural Language AI Model, which provides the Customer with certain textual language to be used within a patent application.
“Person” means any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof. “Platform” means the “Junior” AI software-as-a-service plugin application and any accompanying services and features provided and/or offered to the Customer through such plugin application.
“Custom Prompts” means the set of rules provided by and inputted into the Platform by the Customer which provide certain directions, parameters, guidelines, or the like, to the Natural Language AI Model in drafting the Output.
“Subscription” means the access license to the Platform granted on a recurring basis under this Agreement and pursuant to an applicable Order Form(s). For avoidance of doubt, the Customer may have more than one Subscription at any one-time pursuant separate, corresponding Order Forms.
“Third Party” means any Person who is not the Company, Customer, or an Authorized User.
“Updates” means repairs, enhancements, or the addition of new features to the Platform by the Company.
2. Platform License.
2.1 License Grant. Subject to the terms and conditions of this Agreement and any applicable Order Form, and solely during the Subscription Term set forth in the applicable Order Form, the Company hereby grants to the Customer a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as set out in Section 12.2 below), limited license to access and use the Platform solely for the Customer’s business purposes. Use of the Platform may be further limited by terms and conditions contained in any applicable Order Form.
2.2 User Access Grant. The license granted in Section 2.1 shall extend to such Customer’s Authorized Users, subject to the applicable Order Form which may set forth the maximum number of Authorized Users who may access and use the Platform under such Subscription, provided that each Authorized User registers for his or her own, individual Account.
2.3 No Sublicensing. For avoidance of doubt, the license granted in Section 2.1 does not include the right to sublicense; therefore, the Customer shall not provide a sublicense to any third party.
2.4 Restrictions on Use.
(a) Except as permitted under this Agreement or as required by Law, the Customer will not, and will not permit or encourage anyone else, to:
(i) License, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Platform available to any Third Party in any way;
(ii) Disassemble, decompile, reverse engineer, or otherwise attempt to derive source code or other trade secrets from the Platform, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the Platform in order to (a) build a competitive product or service or (b) build a product using similar features, functions, or graphics of the Platform;
(iii) Modify, remove, or obstruct any proprietary rights statement or notice contained on/within the Platform;
(iv) “Crawl,” “scrape,” or “spider” any data or portion of the Platform (through use of manual or automated means);
(v) Send to the Platform or have the Platform process infringing, unlawful, or tortious material, including material which violates Third Party privacy rights;
(vi) Attempt to gain unauthorized access to the Platform or its related systems or networks;
(vii) Access the Platform if the Customer is a direct competitor of the Company, unless the Company agrees in writing before the Customer accesses the Platform;
(viii) Impersonate an Authorized User, share passwords, or provide false identity information to access or use the Platform;
(ix) Remove, delete, add to, alter, or obscure any part or aspect of the Platform or any warranties, disclaimers, or other notices, or any marks, symbols, or serial numbers (including any of the Company’s Marks) that appear on or in connection with the Platform;
(x) Challenge, or cause, induce, authorize, or assist any Person to challenge, the validity, ownership, use, or registration of any Intellectual Property Rights in and to the Platform, Documentation, and any of the Company’s Marks, or take any action in derogation of the Company’s Marks, including by using, licensing, or applying to register any mark that is identical or substantially similar to any of the Company’s Marks;
(xi) Under or in connection with any part of this Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right of the Company or other right of any Person, or violates any applicable Law, including, but not limited to data protection and privacy Laws;
(xii) Use the Platform in a way prohibited by applicable Law;
(xiii) Use the Platform in a way that could materially harm the functionality or performance of the Platform;
(xiv) Permit unauthorized Third Parties to obtain access to the Platform;
(xv) Use or access the Platform in a manner that fails to comply with this Agreement or any Documentation provided by the Company;
(xvi) Hack or break any security mechanism on the Platform, or pose a security to any Authorized Users on the Platform;
(xvii) Use the Platform or any data obtained through the Platform in a false or misleading manner, or in any manner inconsistent with this Agreement;
(xviii) Use the Platform in any way that may be offensive, profane, obscene, libelous to the Company; or
(xix) Attempt to access the Platform by any means other than through the interface that is provided by the Company
(b) The Customer agrees to comply with all applicable local, state, national, and foreign Laws, treaties, and regulations in connection with the Customer’s and its Authorized Users’ use of the Platform, including those related to data privacy. Customer is responsible for any breach of this Agreement by its Authorized Users. Customer agrees that it will promptly notify the Company of any violation of this Section 2.
2.5 Account Activation. As part of the Platform, the Company will provide the Customer its own, unique account (a “Master Account”). The Customer is fully responsible for all activities performed on or through its Master Account. The Customer also acknowledges and agrees that each Authorized User must create his or her own, unique account (a “Authorized User Account”, and together with the Master Account, an “Account”) to utilize the Platform. The Customer further agrees that the Customer and each Authorized User will: (a) provide true, accurate, current and complete information as prompted by the registration form, (b) maintain and promptly update the data with which he or she registered to ensure the information is always true, accurate, current, and complete, (c) immediately inform the Company of any unauthorized use of its Account or any other breach of security, and (d) exit from its Account at the end of each work session. The Company undertakes no obligation to verify the data provided by the Customer or any Authorized User. However, if the Company finds or suspects that the provided information is untrue, inaccurate, not current, or incomplete, the Company will notify the Customer in writing and if the Customer or the Authorized User fails to provide or correct information, the Company may suspend or terminate such Authorized User’s or Customer’s Account and refuse any and all current or future use of the Platform.
2.6 Account Password Confidentiality. Each Authorized User that uses the Platform must choose a password when registering to use the Platform. The Customer will cause such Authorized User to maintain the confidentiality of the passwords. The Customer will also be assigned a password or passwords for access to and use of the Platform. The Customer is fully responsible for all activities that occur using the Customer’s and each Authorized Users’ passwords. The Customer acknowledges and agrees that the Company shall not be liable for any loss that the Customer or any Authorized User may incur as a result of someone else using a password that has been assigned to or obtained by the Customer or its Authorized Users, either with or without the knowledge of the Customer or the applicable Authorized User; nor shall the Company be liable or responsible for any unauthorized access or misuse of the Platform by Customer or any Authorized User.
2.7 Third Party Materials. The Platform may include, incorporate, utilize or work with other software, including certain open-source software tools, applications, content, data or other materials, including related documentation, that are owned by Persons other than the Company and that are provided to the Customer on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of such Third-Party Licenses may be provided upon the Customer’s reasonable request to the Company, or otherwise as set forth in related Documentation. The Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Customer or any of its Authorized Users of any Third-Party License shall be considered a breach of this Agreement as well.
2.8 Third-Party Providers. Customer acknowledges and agrees that the Company may engage Third Parties (“Third-Party Providers”) to assist it in providing the Platform and such accompanying services and features to the Customer. If the Company engages any Third-Party Providers, the Company will be responsible for ensuring that such Third-Party Providers comply with the terms of this Agreement in their provision of goods and/or services (including any portion of the Platform) to the Customer. Notwithstanding the foregoing, the Company shall have no responsibility for any errors, omissions, inaccuracies, unavailability, or the like, as related to any Third-Party Providers of a Natural Language AI Model, including OpenAI, which is utilized by the Platform in processing Customer Data to generate certain Output.
2.9 Technical Requirements. The Customer shall be solely responsible for its hardware and related electronic equipment, software, and internet access to be able to access and use the Platform. For the avoidance of doubt, the Platform will only work in conjunction with, or otherwise operate with, Microsoft Word. The Company neither represents nor warrants that the Platform will be accessible through all browser releases or all versions of tablets, smartphones, or other computing devices, except as may be expressly set forth on the Order Form.
2.10 Customer Obligations.
(a) In conjunction with the Customer’s use of the Platform, the Customer, if applicable, including, but not limited to, any law firm or legal services provider, must disclose to such Customer’s end-customers or clients, that it is utilizing AI to assist with the patent drafting process.
(b) The Customer shall be required to agree to OpenAI’s terms of service, and the terms of service of any other Third-Party Provider of a Natural Language AI Model whose Natural Language AI Model is integrated within the Platform, from time to time, for utilization by the Customer.
(c) If the Customer is an individual, who is not an attorney or legal services provider, such Customer must, in conjunction with its use of the platform, retain a licensed patent expert to assist with the patent drafting process.
2.11 Suspension of Platform. Any use of the Platform in violation of the Agreement by the Customer that, in the Company’s reasonable judgment, threatens the security, integrity, or availability of the Platform may result in the Company immediately suspending the Company’s access to the Platform; however, the Company will use commercially reasonable efforts under the circumstances to provide the Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3. Additional Services.
3.1 Maintenance.
(a) The Customer acknowledges that certain maintenance activities regarding the Platform may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new services and features. In most instances, the Company’s infrastructure is designed to support updates by the Company’s engineering and support teams without the need to interrupt the Platform generally. Where such maintenance activities are not reasonably anticipated to impact the Customer’s use of the Platform, the Company will have no obligation to provide notice to the Customer regarding such maintenance activities, although the Company generally does so. If the Company reasonably determines that maintenance activities will require an unavailability or outage of the Platform in excess of sixty (60) consecutive minutes, the Company will use reasonable efforts to give the Customer advance notice of the same. The Company will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
(b) The Company has sole discretion to issue periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds, and other error corrections with respect to the Platform (“Updates”). The Customer agrees that the Company has no obligation to provide any Updates or to continue to provide or to enable any particular features or functionality, provided however, that the Company agrees not to discontinue or diminish any material features or functionality of the Platform during the Subscription Term unless the Update is material to the continued proper functioning of the Platform. To the extent that the Customer has control over upgrades and updates within its own instance of the Platform or on the Customer’s own devices or applications, the Customer agrees to promptly install and make use of all Updates and acknowledge and agree that the Platform may not properly operate should the Customer fail to do so. The Customer further understands and agrees that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
3.2 Support Services. Subject to the terms and conditions of this Agreement, the Company will maintain and support the Platform on a “best effort” and an “as needed” basis during the term of the applicable Order Form, at no additional charge to the Customer.
3.3 Beta Features. The Company may, at its sole discretion, make certain services or features available to the Customer through the Platform on a test basis which will be clearly designated as beta, pilot, limited release, non-production, or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, the Customer acknowledges and agrees that Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. The Company does not guarantee that future versions of Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. The Company may terminate the Customer’s right to use Beta Release at any time for any reason. If the Company publicly releases Beta Release, the Customer may execute, if required, a separate Order Form to procure the relevant services or features (being the publicly available version of the Beta Release) at then-current applicable fees.
4. Customer Data
4.1 Customer Data Ownership. The Company acknowledges and agrees that the Customer exclusively owns all right, title, and interest in and to all Customer Data, including any Custom Prompts, in any form or medium, that is are collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model. The Company will not: (a) disclose Customer Data except as compelled by Law (subject to Section 8.3) or as expressly permitted in writing by the Customer, or (b) access Customer Data except to provide the services available via the Platform to the Customer, to prevent or address service or technical problems, or as expressly permitted elsewhere in this Agreement or an Order Form.
4.2 Customer Data Responsibility. The Customer shall be solely and exclusively responsible for Customer Data that it utilizes in conjunction with its use of the Platform, and the Company has no responsibility for verifying or maintaining the same (all of which shall be sole responsibility of the Customer). Accordingly, the Customer is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Customer Data that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, and (ii) no portion of the Customer Data is unlawful or infringes upon the rights of any Third Party. At no time shall the Company be responsible or liable for the accuracy, availability, correctness, timeliness, or any other quality of or concerning the Customer Data. The Company is not responsible for any changes, additions, or deletions of or to the Customer Data made by the Customer or its Authorized Users.
4.3 Customer Data and Custom Prompt Storage. Any Customer Data, in any form or medium, that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, as well as, for the avoidance of doubt, any Custom Prompts developed by the Customer, will be retained by the Company for thirty (30) days from the Customer’s last usage of such Customer Data and Custom Prompt(s), whereby following such thirty (30) day period, if not removed and/or deleted by the Customer prior to the expiration such thirty (30) day period, such specific Customer Data and Custom Prompts will be deleted by the Company.
4.4 No Sensitive Data. Unless written consent has been obtained by the Customer from the Company, the Customer shall not upload, transmit, store, disclose or make available through the Platform any Sensitive Data, and the Company will have no liability whatsoever for such Sensitive Data erroneously transmitted through the Platform. For the purposes of this Agreement, "Sensitive Data” means any Personal Data or end-user data that requires a heightened degree of protection by applicable Law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted requiring heightened standards for data protection or privacy. For the purposes of this Agreement, “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person. This includes any information that is deemed “personal information” or “personal data” as defined by applicable data protection Laws.
4.5 Use of Customer Data. The Company must use Customer Data in certain ways to power the processing of the Platform, including transmitting Customer Data uploaded by the Customer through the Natural Language AI Model. The Platform encrypts Customer Data in transit, and sends it to the Natural Language AI Model in order to generate the Output. Accordingly, the Company will (i) process Customer Data as needed through the Natural Language AI Model in order to deliver the Platform’s core functionality to the Customer, (ii) only process, transfer, and/or store Customer Data using secure, reasonable, and appropriate mechanisms, and (iii) exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
4.6 Customer Data License. During the Term, Customer grants to the Company a non-exclusive, non-transferable, non-assignable (except as set forth in Section 12.2 below), worldwide, royalty-free, fully-paid license to access and use Customer Data to provide the services and features available through the Platform, and for such purposes as further set forth in Section 4.5 herein, to the Customer and to monitor, develop, and improve the Platform generally. The Company reserves the right to monitor the Customer’s use of the Platform and the data collected therein, which may include reviewing Customer Data collected by or stored in the Platform as necessary to ensure compliance with applicable Laws and with the terms of this Agreement.
4.7 Aggregated Data Use. The Customer agrees that the Company may use, reproduce and disclose Customer Data, including, for the avoidance of doubt, any Custom Prompts, that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Customer or any other identifiable individual person or entity (“Anonymized Data”) for product/Platform improvement and other purposes consistent with the Company’s Privacy Policy. This right to use Anonymized Data will survive termination of this Agreement.
4.8 Customer Usage Data. The Customer acknowledges and agrees that the Company may, directly or indirectly, including through the services of Third Parties, collect and store information and data in connection with the Customer’s and its Authorized Users’ use of the Platform and about equipment on which the Platform is installed or through which it otherwise is accessed and used (the “Customer Usage Data”). The Company may collect such information and data through means including, but not limited to, the Customer’s access and use of the Platform. The Company may access, use, and provide Third Parties with access to and use of the Customer Usage Data for the following enumerated purposes: (i) making the Platform functional and usable for the Customer and its Authorized Users; (ii) improving the performance of the Platform; (iii) developing Updates, new versions, and new service offerings; and/or (iv) verifying the Customer’s and its Authorized Users’ compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Platform.
4.9 Privacy Policy. As applicable, the Customer’s access to and use of the Platform, as well as any communications which the Customer may have with the Company, is subject to the Company’s Privacy Policy, as updated by the Company from time to time, and is incorporated herein by reference. By using the Platform, or otherwise purchasing a Subscription, the Customers consents to the terms of the Privacy Policy
5. Intellectual Property Ownership.
5.1 Company Intellectual Property. Except for the limited right to access and use the Platform under this Agreement and the applicable Order Form, the Customer acknowledges and agrees that, as between the Parties, the Company, or its licensors, as the case may be, has and will retain any and all right, title, and interest in and to the Platform, the services provided therethrough, and any underlying software, as well as all derivative works made by any person or entity based upon the Platform, including all Intellectual Property Rights associated with the foregoing. The Customer will not assert or cause any other party (including, without limitation, any Authorized User) to assert any right, title, or interest in or to the Platform or other portion of the Company’s Intellectual Property Rights. If the Customer provides the Company with any feedback or suggestions about the Platform or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Customer, and the Customer irrevocably assigns to the Company all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give the Customer any rights of ownership in, or related to, the Platform or the Company’s Intellectual Property Rights.
5.2 Customer Intellectual Property. The Customer will retain ownership of the Outputs generated by the Platform, via the Natural Language AI Model, and subject to any rights of Third-Party Providers, if any. For the avoidance of doubt, the Company shall not be responsible for any Output generated by the Platform which infringes upon the Intellectual Property Rights of any Third Party. Further, at no time shall the Company be responsible or liable for the accuracy, availability, correctness, timeliness, or any other quality of or concerning the Output, or the Customer’s reliance on the Output.
6. Subscription Fees and Payment Terms.
6.1 Subscription Fees.
(a) All amounts due by the Customer under the Agreement for access to the Platform and the applicable Subscription shall be payable on the terms set forth on the applicable Order Form (the “Subscription Fees”).
(c) The timing for the Customer’s payment of the Subscription Fees (the “Billing Cycle”) will be set forth in the corresponding Order Form. Unless otherwise set forth in the Order Form, the Subscription Fees in connection with Customer’s Subscription will initially be due and payable on or before the beginning of the subscription start date (the “Subscription Start Date” and subsequently, on the same day of the following month, quarter, or year, as applicable, in accordance to the Customer’s Billing Cycle (the “Billing Date”).
6.2 Payment Card. To activate a Subscription, the Customer must provide to the Company upon its initial purchase of a Subscription and subsequently maintain at all times a valid, current credit or debit card (a “Payment Card”) and related billing information on file with the Company/within the Customer’s Account as a condition to be provided with and continuing to receive Platform access under such Subscription. The Customer agrees that the Company shall automatically charge such Payment Card for any Subscription Fees due in accordance with the Billing Cycle, without the requirement of a signature by the Customer or any additional action required on the part of the Customer. As such, the Customer expressly authorize the Company to charge the Customer’s provided Payment Card for all Subscription Fees owed to the Company in connection with the Subscription purchased for such Platform access. For the avoidance of doubt, payments of Subscription Fees are processed by the Company’s third-party payment processing provider and not directly by the Company. Notwithstanding the foregoing, the Customer expressly agrees to timely pay all Subscription Fees that are due no later than the Billing Date.
6.3 Payment. Specifically, all Subscription Fees must be paid by the Customer on or before the Billing Date before the Company shall be required to provide the Customer with access to the Platform. All Fees paid, by the Customer under this Agreement, including any prepayments, if applicable, are final and are non-refundable for any reason, even in the event of early termination or cancellation of a Subscription, except as expressly set forth elsewhere in this Agreement or an applicable Order Form.
6.4 Acceleration. In the event of termination of this Agreement for any reason other than termination by the Customer due to breach by the Company, unless otherwise set forth herein, the due dates for payment of all Subscription Fees will automatically be accelerated so that they become due and payable on the effective date of termination, even if longer terms had been provided previously.
6.5 Price Changes.
(a) The Company may, in its sole discretion, amend its Subscription Fees and pricing structure for payment of Subscription Fees in connection with the Platform and the Subscriptions. All changes in Subscription Fees shall be communicated by the Company to the Customer no less than thirty (30) days prior to the effective date of such change. Notwithstanding anything to the contrary herein, and except as provided for in an applicable Order form, for each Subscription, changes to Subscription Fees due will take effect only upon the renewal of a Subscription Term of that Subscription.
(b) To the extent that applicable Third Party’s impose increased costs or expenses on the Company that materially affect the Company’s cost of delivering the Subscriptions to Company, the Company reserves the right, in its sole discretion, to propose to pass through any such increased costs and expenses to the Customer by reasonably increasing the Subscription Fees with respect to the applicable Subscriptions upon at least thirty (30) days’ prior notice to the Customer; provided that if the Customer does not promptly agree in writing, or otherwise provide its consent, to any such increase, then the Company may not charge for the same, but may terminate the applicable Subscription(s) without further obligation to the Customer. If the Company exercises the foregoing termination right, the Company shall refund the Customer any unused prepaid fees on a pro-rata basis.
(c) In addition to the foregoing, to the extent that the Third-Party Provider of the Natural Language AI Model, including OpenAI or any other similar Third-Party Provider utilized by the Company from time to time, imposes “overage” fees related to the Customer’s use of the Platform, the Customer agrees to pay such “overage” fees within fourteen days of being invoiced by the Company.
6.6 Late Payment. The Customer’s late payments of Subscription Fees will accrue interest in the amount of one and one-half percent (1.5%) per month, or the maximum interest allowed under applicable Law, on all balances not paid when due on account of all invoices which are not reasonably in dispute. The Customer shall reimburse the Company for all costs incurred by the Company in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees. The Company may, at its option, upon notice and a reasonable opportunity to cure, suspend the Customer’s access to the Platform or the Subscriptions, in whole or in part, if the Company does not receive all amounts which are due and owing, and not reasonably in dispute, under the Agreement when due; provided that it shall restore normal services promptly upon the clearance of any such disputed amounts.
6.7 Free Trial. If the Customer is a new customer, the Company may elect, from time to time, to provide the Customer with the ability to use and evaluate the Platform at no cost (a “Free Trial Subscription”). Unless the Company expressly agrees otherwise in writing, the period of the Free Trial Subscription shall be fourteen (14) days from the date on which the Company grant the Customer with access to the Platform (the “Free Trial Period”). To request and access a Free Trial Subscription, the Company may require the Customer to sign up for a certain Subscription and to accept this Agreement. Further, the Company may require the Customer to provide the Company with a valid Payment Card, and the Customer expressly authorizes the Company to charge the full amount of the Subscription Fees applicable to such selected Subscription, and based on such Billing Cycle, on the date following the conclusion of the Customer’s Free Trial Period, unless the Customer notifies the Company, pursuant to Section 12.3, of the Customer’s desire to cancel its Free Trial Subscription before that date. Unless the Company makes available to the Customer a different Subscription plan and/or Billing Cycle and the Customer elects the same, in advance, FOLLOWING THE CONCLUSION OF THE FREE TRIAL PERIOD, THE CUSTOMER WILL AUTOMATICALLY BE TRANSITIONED TO AN ANNUAL SUBSCRIPTION PLAN THAT IS SUBJECT TO AN ANNUAL BILLING CYCLE WITH THE SUBSCRIPTION FEES PAID IN ADVANCE. The Customer expressly acknowledges, agrees, and consents to the Company charging the Payment Card that the Customer provides for the full amount of the Subscription Fees of the annual Subscription plan, pursuant to an annual Billing Cycle with the Subscription Fees paid in advance. The Company reserves the right to limit access to Free Trial Subscriptions to only new customers who have not previously used or accessed the Platform (and who have not been granted a prior Free Trial Subscription). The Company further reserves the right to terminate any active Free Trial Subscriptions, and to deny Free Trial Subscriptions, to anyone, for any reason and at any time, in the Company’s sole discretion.
6.8 Taxes. The Subscription Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, the “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 6, including for Subscription Fees previously invoiced, the Company will invoice the Customer and the Customer shall pay that amount (unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority).
7. Term and Termination.
7.1 Agreement Term. This Agreement will commence on its Effective Date and will remain in full force and effect for so long as any individual Order Form or Subscription remains in effect and for a period of ninety (90) days thereafter (the “Term”).
7.2 Subscription Term. The Customer may have the opportunity to purchase one or more Subscriptions during the Term of this Agreement. Each Subscription shall commence on the Subscription Start Date set forth in the corresponding Order Form and shall continue in effect until for the period of time prescribed in the Order Form, until it is terminated in accordance herewith (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
7.3 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein or therein, the Parties shall have the right to terminate this Agreement or any Subscription, by providing notice, in such manner as set forth in Section 12.3, as provided below:
(a) By either Party, if the other Party commits a material breach of this Agreement and such breach (i) is incapable of cure, or (ii) is capable of cure but remains uncured thirty (30) days after written notice of such breach is delivered to such other Party. For the avoidance of doubt, if the material breach relates to a specific Subscription, any other Subscriptions will remain active and subject to the term of this Agreement;
(b) By either Party, if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy Laws, Laws of debtor’s moratorium or similar Laws;
(c) By the Company, if the Company reasonably determines that further provision of the Platform would be (or would present a substantial risk) in contravention of any applicable Law or rule of any governmental unit or self-regulatory organization;
(d) By the Company, if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than thirty (30) days following written notice of such unpaid amounts being delivered to the Customer;
(e) By the Company, if OpenAI or any other Third-Party Provider of a Natural Language AI Model provider discontinues its license with the Company, whereby the Company is therefore unable to provide the Platform’s associated services and features; or
(f) Upon termination or non-renewal of all Subscriptions and active Order Forms.
7.4 Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, the Company will promptly terminate the Customer’s access to the Platform under such Subscriptions and, to the extent the Company possesses Customer Data, the Company will make any Customer Data available for the Customer to access for a period of thirty (30) days after expiration or termination. After such 30-day period, the Company will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing, the Company may retain Customer Data (a) contained in electronic archives and backups made in the ordinary course of business, (b) that the Company is required by Law to maintain; or (c) that the Company reasonably determines necessary to demonstrate to the other Party or any regulatory authority of the Company’s compliance with this Agreement, the Data Processing Agreement or any applicable Law or regulation; provided that all such Customer Data retained will remain subject to the protections set forth herein for so long as it remains in the Company’s possession or control. Upon termination of the Agreement, the Customer will immediately cease all use of and access to the Platform. The Customer shall pay all Subscription Fees reflected in each Order Form issued hereunder; provided, however, that where the Customer terminates this Agreement pursuant to Section 7.3(a) or the Company terminates this Agreement pursuant to Sections 7.3(c) or (e), the Company shall provide, if applicable, the Customer a pro-rata refund of Subscription Fees, paid in advance, for the remaining, unused portion of Platform access during such Billing Cycle.
7.5 Survival. Termination of this Agreement or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
8. Confidentiality.
8.1 Confidential Information. Each Party (the “Recipient”) acknowledges that the other Party (the “Discloser”) has business, technical, or financial information relating to the Discloser’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”), which includes the terms and conditions of this Agreement. The Company’s Confidential Information includes non-public information regarding features, functionality, pricing, and performance of the Platform, as well as all non-public user-visible aspects of the Platform. And, for avoidance of doubt, Customer Data shall not be deemed Confidential Information for the purposes of this Section 8.
8.2 Non-Use. The Recipient will take at least those measures that it takes to protect its own Confidential Information, but never less than a standard of reasonable care. The Recipient agrees: (i) not to use any Confidential Information of the Discloser for any purpose except to perform its obligations or to exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of Recipient to Third Parties, except to the Recipient’s own employees, officers, agents, contractors, or other representatives (“Personnel”) who have a legitimate need to know such Confidential Information in order to perform work in connection with this Agreement and who are subject to written confidentiality obligations as least as protective as those of this Agreement.
8.3 Exceptions. The Discloser agrees that these confidentiality obligations and restrictions on use will not apply to any information that the Recipient can document: (a) is or becomes generally available to the public through no action or inaction of the Recipient; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it without restriction by a Third Party; or (d) was independently developed without use of or reference to any Confidential Information of the Discloser. Nothing in this Section 8 precludes either Party from disclosing the other Party’s Confidential Information as required by Law or a legal process, provided that the Recipient (a) gives the Discloser prior written notice sufficient to permit the Discloser to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the Discloser (at the Discloser’s expense) in limiting the disclosure. In addition, a Party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers (solely in connection with the due diligence review of such Party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those in this Agreement).
8.4 Return of Confidential Information. Promptly following the earlier of (i) the expiration or termination of this Agreement or (ii) the request of the Discloser, Recipient will return to the Discloser, or, at the Discloser’s option, destroy all Confidential Information of the Discloser that are in written, electronic, or other tangible form, including, without limitation, all copies, extracts, and derivatives of such Confidential Information. In addition, upon the request of the Discloser, the Recipient will certify to the Discloser in writing the Recipient’s and its Personnel’s compliance with its obligations pursuant to this Section 8.4.
8.5 Redundancy. Notwithstanding the foregoing, the Recipient may retain Confidential Information (a) contained in electronic archives and backups made in the ordinary course of business, (b) that such Party is required by Law to maintain; or (c) that such Party reasonably determines necessary to demonstrate to the other Party or any regulatory authority the Recipient’s compliance with this Agreement or any applicable Law or regulation; provided that all such Confidential Information retained will remain subject to the protections set forth herein for so long as it remains in the Recipient’s possession or control. At such time as a Party’s basis for retaining such information ceases to exist, such party shall return or destroy such information as set forth above.
8.6 Equitable Remedies. The Parties acknowledge that disclosure or use of the other Party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each Party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of this Section 8 by the Receiving Party (without the need to pay any bond), in addition to any other rights and remedies that the Disclosing Party may have at Law.
9. Representations & Warranties; Disclaimers.
9.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2 Company Representations and Warranties. The Company represents and warrants that: (a) it has all rights, licenses, consents, and authorizations necessary to grant the rights and licenses granted in this Agreement; and (b) the Platform will perform substantially in conformity with its Documentation under normal use and circumstances. If the Platform fails to comply with the warranty in this Section 9.2, and notwithstanding any other agreement to the contrary, the Company shall, at its sole option, either: (i) repair or replace the Platform; or (ii) refund the Subscription Fees attributable to such period of incompliance, starting on the date the Customer provides written notice of the same, and subject to the Customer ceasing all use of the Platform.
9.3 Customer Representations and Warranties. The Customer represents and warrants that: (a) the Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of Customer Data that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model; and (b) the provision and use of Customer Data as contemplated by this Agreement does not and will not violate any privacy policy, terms of use, or other agreement to which the Customer is a party or any Law or regulation to which the Customer is subject.
9.4 No Other Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER THE COMPANY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE MEMBERS, SHAREHOLDERS, OFFICERS, MANAGERS, DIRECTORS, AGENTS OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY, WITH RESPECT TO THE PLATFORM, OR OTHERWISE REGARDING THE AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM IS PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY.
9.5 Disclaimer of Warranties. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED; THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED; THAT THE SYSTEM AND SOFTWARE THAT MAKES THE PLATFORM AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, APPLICATIONS OR DATA NOT PROVIDED OR RECOMMENDED BY THE COMPANY; THAT THE OPERATION OF THE PLATFORM WILL BE SECURE; THAT THE PLATFORM’S FUNCTIONALITY AND ANY OUTPUT GENERATED BY THE PLATFORM WILL MEET THE CUSTOMER’S OR ITS AUTHORIZED USERS’ REQUIREMENTS; THAT OUTPUT GENERATED BY THE PLATFORM WILL ACCURATELY PROVIDE THE REQUISITE, DESIRED, OR EXPECTED OUTPUTS OR GENERALLLY BE ACCURATE, COMPLETE, LEGAL, AND NON-INFRINGING; THAT THE OUTPUT GENERATED WILL CONFORM TO STANDARD PATENT PRACTICE OR THAT A GIVEN PATENT APPLICATION WHICH INCORPORATES ANY OUTPUT GENERATED WILL BE APPROVED. THE CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S AND ITS AUTHORIZED USERS’ PURPOSES.
10. Indemnification.
10.1 Company Indemnification of Customer.
(a) The Company will defend, indemnify, and hold harmless the Customer and its respective directors, officers, managers, shareholders, members, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a Third Party claim (collectively, the “Third Party Claims”) alleging (i) that the Platform or the Customer’s permissible use thereof infringes or violates any Third Party Intellectual Property Rights, or (ii) a breach of the Company’s confidentiality obligations under this Agreement.
(b) Such indemnity pursuant to Section 10.1(a), however, is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from the Customer’s (i) unauthorized alteration of the Platform; (ii) any use of the Platform by the Customer that violates any Law (including any regulation of any governmental authority or self-regulatory agency or authority applicable to the Customer); or (iii) use of the Platform in a manner that violates Section 2 of this Agreement. In order to resolve any such Third Party Claim relating to Section 10.1(a), the Company may, but is not obligated to, (i) modify or replace the Platform to make it non-infringing; (ii) procure any rights from a Third Party necessary to provide the applicable Subscription; or (iii) replace the Platform with work product that is materially equal in capabilities, capacity, performance, and ease of use but is non-infringing. If none of the foregoing remedies is available to the Company on commercially reasonable terms, the Company may terminate this Agreement and the Company will refund to the Customer a prorated portion of any prepaid Subscription Fees allocable to the period after such termination. THIS SECTION
10.1 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
10.2 Customer Indemnification of Company. The Customer will defend, indemnify, and hold harmless the Company and its respective directors, officers, managers, shareholders, members, employees, licensors, representatives, and agents (the “Company Indemnified Parties”) from and against any and all Third Party Claims alleging (i) unlawful, or fraudulent, misconduct by the Customer or its agents; (ii) a breach by the Customer or its agents of its obligations under Section 2 and Section 9.3; (iii) alleging that the Company’s use or handling of the Customer Data (in accordance with the terms of this Agreement and the Law) violates any Third Party Intellectual Property Rights or the Law; or (iv) alleging that any Output generated violates any Third Party Intellectual Property Rights or the Law
10.3 Procedure for Handling Indemnification Claims. As a condition to a Party’s obligations under Sections 10.1 or 10.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (a) prompt written notice of the Third Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (b) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (c) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
11. Limitation of Liability.
11.1 Exclusions of Liability. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, OR ANY OF THEIR MEMBERS, SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR THE PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
11.2 Maximum Liability. THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ALL CLAIMS UNDER, IN CONNECTION WITH OR ARISING OUT OF, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE FEES RECEIVED BY THE COMPANY FROM THE CUSTOMER IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO: (A) THE CUSTOMER’S OBLIGATION TO PAY THE SUBSCRIPTION FEES, (B) WILLFUL MISCONDUCT OF A PARTY, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
12. Miscellaneous.
12.1 Publicity. The Customer expressly grants the Company the right to identify the Customer as its customer on the Company’s website and in its advertising and promotional materials. In connection with the foregoing, the Customer grants the Company, during the Subscription Term, a non-exclusive, non-transferrable, limited right and license to use Customer’s name and logo.
12.2 Assignment. Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 12.2 shall be void and of no effect. Notwithstanding the foregoing, the Company may assign this Agreement to any Third Party acquiring all or substantially all of the Company’s equity or assets pursuant to a merger, sale, reorganization, or consolidation with that Third Party without the Customer’s consent. The Company may further delegate its obligations, in whole or in part, to any of its Affiliates without the Customer’s consent. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
12.3 Notices. The Company may deliver any notice required or permitted hereunder (i) via a notice appearing in the Customer’s Account or via the Platform (ii) via electronic mail to the Customer’s contact information on record with the Company in the Customer’s Account information, which notice will be deemed received by the Customer when posted or transmitted by the Company. Where the Company permit notices to be given to the Company via a feature or functionality of the Platform (for example, changes to the Customer’s Account or Payment Card information), the Customer may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by the Company, but only to the extent the notice is of a type for which the feature or functionality is intended to convey (for example, using the Customer’s Account page to update the Customer’s contact information). Otherwise, all notices to the Company under these Terms (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to the Company by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) reputable national or international mail courier with proof of delivery. The Company’s current address is:
Equipat IP LLC
Attn: Terms Notices
2870 Peachtree Rd NW #484, Atlanta
GA 30305
12.4 Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents. Except as expressly agreed by the Parties, neither Party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
12.5 No Exclusivity. Nothing in this Agreement shall restrict the Company’s right to contract with any Third Party who provides products and/or services similar to or identical to the Customer.
12.6 Entire Agreement. This Agreement, and any terms, exhibits, schedules, policies, or addenda attached hereto or referenced, or otherwise incorporated, herein, including any applicable Order Forms, constitute the entire Agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof. To the extent, there is any conflict among the terms of this Agreement and an applicable Order Form, such conflict will be governed in the following order: (a) the terms of the Order Form, and then, (b) this Agreement and any applicable schedules and exhibits, the terms of which are incorporated into such Order Form by reference.
12.7 Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement, and signed by an authorized representative of each Party. Notwithstanding the foregoing, the Company reserves the right, in its sole discretion, to make any changes to the Platform that it deems necessary or useful to: (i) maintain or enhance the quality or delivery of the Platform, (ii) the competitive strength of or market for the Platform, (iii) the Platform’s cost efficiency or performance; or (iv) comply with applicable Law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
12.8 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by Law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.9 Force Majeure. Neither Party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of Third Party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a Party’s reasonable control.
12.10 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed, and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
12.11 Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
12.12 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia and without regard to the U.N. Convention on the International Sale of Goods (CISG).
12.13 Disputes; Arbitration. Any dispute, controversy, or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any Party involved, shall be submitted to, and settled by, arbitration pursuant to the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) by Arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Atlanta, Georgia, or as agreed upon by the Parties, and judgment on the award rendered by the Arbitrators may be entered in any court with jurisdiction. The arbitration shall be conducted in the English language. The arbitration shall be conducted by three (3) neutral and impartial arbitrators (the “Arbitrators”). Each Party shall appoint a neutral and impartial Arbitrator of its choosing, and those Arbitrators shall agree upon and appoint the third neutral and impartial Arbitrator. The Arbitrators shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief (including an injunction or preservation of evidence) in any court of law having proper jurisdiction, in addition to all other available remedies. The Parties agree that the prevailing Party in any arbitration action hereunder shall be entitled to receive, in addition to all other damages and awards, the costs incurred by such Party in conducting the arbitration, including reasonable attorneys’ fees and expenses, and arbitration costs. In addition to and not in limitation of the foregoing mandatory arbitration requirements, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief – including an injunction or preservation of evidence – in any court of law having proper jurisdiction, in addition to all other available remedies.
12.14 Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email, or other means of conventional electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[End of Terms of Service]
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, THE CUSTOMER AND THE COMPANY AGREE THAT DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.
WHEREAS, the Company provides a Platform (as defined below) which, through the use and assistance of the Natural Language AI Model (as defined herein), assists with the patent drafting process, as further detailed herein; and
WHEREAS, the Customer desires to obtain a license to use the Platform, on a subscription basis, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Customer agree as follows:
1. Definitions.
In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
“AI” means artificial intelligence.
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“API” means an application programming interface.
“Authorized Users” means individuals, including the Customer’s employees, consultants, contractors, and agents, who are provided access to the Platform by the Customer and an account to access the same, pursuant to the Customer’s Subscription to the Platform and such applicable Order Form.
“Customer Data” means any documents, text, information, data, code, content, materials, writings, or anything of a similar nature, that are collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, to generate certain Output, and for the avoidance of doubt, shall encompass any Custom Prompts developed by the Customer within the Platform transmitted by and through the Platform, via the Natural Language AI Model, to generate certain Output, and for the avoidance of doubt, shall encompass any Custom Prompts developed by the Customer within the Platform.
“Documentation” means the documentation that is provided to the Customer that describes the then-current specifications, functions, and features of the Platform, in any form.
“Intellectual Property” means the property of a Party that is protected in any manner by Intellectual Property Rights.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
“Law” means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to such Person.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Natural Language AI Model” means OpenAI API, and its related AI model, currently used by the Platform to process and analyze Customer Data in providing the Output, and includes any other natural language AI models which may be offered/provided by the Company, from time to time, for utilization by customers in generating Output.
“OpenAI” means OpenAI, LP, an AI research and deployment nonprofit that has developed a publicly- accessible API for generating natural language based on AI models.
“Order Form” means an applicable order form or pricing/payment page, which may be displayed via the Company’s website, which describes the Subscription, the Subscription Term, etc. to be provided to the Customer which is: (a) executed by the Company and the Customer, or (b) which is consented to by the Customer, including by way of click-through consent.
“Output” means an AI-generated textual response to Customer’s submission of Customer Data and direction provided by Customer’s provided/developed Custom Prompts via the Platform and as generated via the Natural Language AI Model, which provides the Customer with certain textual language to be used within a patent application.
“Person” means any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof. “Platform” means the “Junior” AI software-as-a-service plugin application and any accompanying services and features provided and/or offered to the Customer through such plugin application.
“Custom Prompts” means the set of rules provided by and inputted into the Platform by the Customer which provide certain directions, parameters, guidelines, or the like, to the Natural Language AI Model in drafting the Output.
“Subscription” means the access license to the Platform granted on a recurring basis under this Agreement and pursuant to an applicable Order Form(s). For avoidance of doubt, the Customer may have more than one Subscription at any one-time pursuant separate, corresponding Order Forms.
“Third Party” means any Person who is not the Company, Customer, or an Authorized User.
“Updates” means repairs, enhancements, or the addition of new features to the Platform by the Company.
2. Platform License.
2.1 License Grant. Subject to the terms and conditions of this Agreement and any applicable Order Form, and solely during the Subscription Term set forth in the applicable Order Form, the Company hereby grants to the Customer a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as set out in Section 12.2 below), limited license to access and use the Platform solely for the Customer’s business purposes. Use of the Platform may be further limited by terms and conditions contained in any applicable Order Form.
2.2 User Access Grant. The license granted in Section 2.1 shall extend to such Customer’s Authorized Users, subject to the applicable Order Form which may set forth the maximum number of Authorized Users who may access and use the Platform under such Subscription, provided that each Authorized User registers for his or her own, individual Account.
2.3 No Sublicensing. For avoidance of doubt, the license granted in Section 2.1 does not include the right to sublicense; therefore, the Customer shall not provide a sublicense to any third party.
2.4 Restrictions on Use.
(a) Except as permitted under this Agreement or as required by Law, the Customer will not, and will not permit or encourage anyone else, to:
(i) License, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Platform available to any Third Party in any way;
(ii) Disassemble, decompile, reverse engineer, or otherwise attempt to derive source code or other trade secrets from the Platform, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the Platform in order to (a) build a competitive product or service or (b) build a product using similar features, functions, or graphics of the Platform;
(iii) Modify, remove, or obstruct any proprietary rights statement or notice contained on/within the Platform;
(iv) “Crawl,” “scrape,” or “spider” any data or portion of the Platform (through use of manual or automated means);
(v) Send to the Platform or have the Platform process infringing, unlawful, or tortious material, including material which violates Third Party privacy rights;
(vi) Attempt to gain unauthorized access to the Platform or its related systems or networks;
(vii) Access the Platform if the Customer is a direct competitor of the Company, unless the Company agrees in writing before the Customer accesses the Platform;
(viii) Impersonate an Authorized User, share passwords, or provide false identity information to access or use the Platform;
(ix) Remove, delete, add to, alter, or obscure any part or aspect of the Platform or any warranties, disclaimers, or other notices, or any marks, symbols, or serial numbers (including any of the Company’s Marks) that appear on or in connection with the Platform;
(x) Challenge, or cause, induce, authorize, or assist any Person to challenge, the validity, ownership, use, or registration of any Intellectual Property Rights in and to the Platform, Documentation, and any of the Company’s Marks, or take any action in derogation of the Company’s Marks, including by using, licensing, or applying to register any mark that is identical or substantially similar to any of the Company’s Marks;
(xi) Under or in connection with any part of this Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right of the Company or other right of any Person, or violates any applicable Law, including, but not limited to data protection and privacy Laws;
(xii) Use the Platform in a way prohibited by applicable Law;
(xiii) Use the Platform in a way that could materially harm the functionality or performance of the Platform;
(xiv) Permit unauthorized Third Parties to obtain access to the Platform;
(xv) Use or access the Platform in a manner that fails to comply with this Agreement or any Documentation provided by the Company;
(xvi) Hack or break any security mechanism on the Platform, or pose a security to any Authorized Users on the Platform;
(xvii) Use the Platform or any data obtained through the Platform in a false or misleading manner, or in any manner inconsistent with this Agreement;
(xviii) Use the Platform in any way that may be offensive, profane, obscene, libelous to the Company; or
(xix) Attempt to access the Platform by any means other than through the interface that is provided by the Company
(b) The Customer agrees to comply with all applicable local, state, national, and foreign Laws, treaties, and regulations in connection with the Customer’s and its Authorized Users’ use of the Platform, including those related to data privacy. Customer is responsible for any breach of this Agreement by its Authorized Users. Customer agrees that it will promptly notify the Company of any violation of this Section 2.
2.5 Account Activation. As part of the Platform, the Company will provide the Customer its own, unique account (a “Master Account”). The Customer is fully responsible for all activities performed on or through its Master Account. The Customer also acknowledges and agrees that each Authorized User must create his or her own, unique account (a “Authorized User Account”, and together with the Master Account, an “Account”) to utilize the Platform. The Customer further agrees that the Customer and each Authorized User will: (a) provide true, accurate, current and complete information as prompted by the registration form, (b) maintain and promptly update the data with which he or she registered to ensure the information is always true, accurate, current, and complete, (c) immediately inform the Company of any unauthorized use of its Account or any other breach of security, and (d) exit from its Account at the end of each work session. The Company undertakes no obligation to verify the data provided by the Customer or any Authorized User. However, if the Company finds or suspects that the provided information is untrue, inaccurate, not current, or incomplete, the Company will notify the Customer in writing and if the Customer or the Authorized User fails to provide or correct information, the Company may suspend or terminate such Authorized User’s or Customer’s Account and refuse any and all current or future use of the Platform.
2.6 Account Password Confidentiality. Each Authorized User that uses the Platform must choose a password when registering to use the Platform. The Customer will cause such Authorized User to maintain the confidentiality of the passwords. The Customer will also be assigned a password or passwords for access to and use of the Platform. The Customer is fully responsible for all activities that occur using the Customer’s and each Authorized Users’ passwords. The Customer acknowledges and agrees that the Company shall not be liable for any loss that the Customer or any Authorized User may incur as a result of someone else using a password that has been assigned to or obtained by the Customer or its Authorized Users, either with or without the knowledge of the Customer or the applicable Authorized User; nor shall the Company be liable or responsible for any unauthorized access or misuse of the Platform by Customer or any Authorized User.
2.7 Third Party Materials. The Platform may include, incorporate, utilize or work with other software, including certain open-source software tools, applications, content, data or other materials, including related documentation, that are owned by Persons other than the Company and that are provided to the Customer on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of such Third-Party Licenses may be provided upon the Customer’s reasonable request to the Company, or otherwise as set forth in related Documentation. The Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Customer or any of its Authorized Users of any Third-Party License shall be considered a breach of this Agreement as well.
2.8 Third-Party Providers. Customer acknowledges and agrees that the Company may engage Third Parties (“Third-Party Providers”) to assist it in providing the Platform and such accompanying services and features to the Customer. If the Company engages any Third-Party Providers, the Company will be responsible for ensuring that such Third-Party Providers comply with the terms of this Agreement in their provision of goods and/or services (including any portion of the Platform) to the Customer. Notwithstanding the foregoing, the Company shall have no responsibility for any errors, omissions, inaccuracies, unavailability, or the like, as related to any Third-Party Providers of a Natural Language AI Model, including OpenAI, which is utilized by the Platform in processing Customer Data to generate certain Output.
2.9 Technical Requirements. The Customer shall be solely responsible for its hardware and related electronic equipment, software, and internet access to be able to access and use the Platform. For the avoidance of doubt, the Platform will only work in conjunction with, or otherwise operate with, Microsoft Word. The Company neither represents nor warrants that the Platform will be accessible through all browser releases or all versions of tablets, smartphones, or other computing devices, except as may be expressly set forth on the Order Form.
2.10 Customer Obligations.
(a) In conjunction with the Customer’s use of the Platform, the Customer, if applicable, including, but not limited to, any law firm or legal services provider, must disclose to such Customer’s end-customers or clients, that it is utilizing AI to assist with the patent drafting process.
(b) The Customer shall be required to agree to OpenAI’s terms of service, and the terms of service of any other Third-Party Provider of a Natural Language AI Model whose Natural Language AI Model is integrated within the Platform, from time to time, for utilization by the Customer.
(c) If the Customer is an individual, who is not an attorney or legal services provider, such Customer must, in conjunction with its use of the platform, retain a licensed patent expert to assist with the patent drafting process.
2.11 Suspension of Platform. Any use of the Platform in violation of the Agreement by the Customer that, in the Company’s reasonable judgment, threatens the security, integrity, or availability of the Platform may result in the Company immediately suspending the Company’s access to the Platform; however, the Company will use commercially reasonable efforts under the circumstances to provide the Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3. Additional Services.
3.1 Maintenance.
(a) The Customer acknowledges that certain maintenance activities regarding the Platform may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new services and features. In most instances, the Company’s infrastructure is designed to support updates by the Company’s engineering and support teams without the need to interrupt the Platform generally. Where such maintenance activities are not reasonably anticipated to impact the Customer’s use of the Platform, the Company will have no obligation to provide notice to the Customer regarding such maintenance activities, although the Company generally does so. If the Company reasonably determines that maintenance activities will require an unavailability or outage of the Platform in excess of sixty (60) consecutive minutes, the Company will use reasonable efforts to give the Customer advance notice of the same. The Company will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
(b) The Company has sole discretion to issue periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds, and other error corrections with respect to the Platform (“Updates”). The Customer agrees that the Company has no obligation to provide any Updates or to continue to provide or to enable any particular features or functionality, provided however, that the Company agrees not to discontinue or diminish any material features or functionality of the Platform during the Subscription Term unless the Update is material to the continued proper functioning of the Platform. To the extent that the Customer has control over upgrades and updates within its own instance of the Platform or on the Customer’s own devices or applications, the Customer agrees to promptly install and make use of all Updates and acknowledge and agree that the Platform may not properly operate should the Customer fail to do so. The Customer further understands and agrees that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
3.2 Support Services. Subject to the terms and conditions of this Agreement, the Company will maintain and support the Platform on a “best effort” and an “as needed” basis during the term of the applicable Order Form, at no additional charge to the Customer.
3.3 Beta Features. The Company may, at its sole discretion, make certain services or features available to the Customer through the Platform on a test basis which will be clearly designated as beta, pilot, limited release, non-production, or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, the Customer acknowledges and agrees that Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. The Company does not guarantee that future versions of Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. The Company may terminate the Customer’s right to use Beta Release at any time for any reason. If the Company publicly releases Beta Release, the Customer may execute, if required, a separate Order Form to procure the relevant services or features (being the publicly available version of the Beta Release) at then-current applicable fees.
4. Customer Data
4.1 Customer Data Ownership. The Company acknowledges and agrees that the Customer exclusively owns all right, title, and interest in and to all Customer Data, including any Custom Prompts, in any form or medium, that is are collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model. The Company will not: (a) disclose Customer Data except as compelled by Law (subject to Section 8.3) or as expressly permitted in writing by the Customer, or (b) access Customer Data except to provide the services available via the Platform to the Customer, to prevent or address service or technical problems, or as expressly permitted elsewhere in this Agreement or an Order Form.
4.2 Customer Data Responsibility. The Customer shall be solely and exclusively responsible for Customer Data that it utilizes in conjunction with its use of the Platform, and the Company has no responsibility for verifying or maintaining the same (all of which shall be sole responsibility of the Customer). Accordingly, the Customer is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Customer Data that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, and (ii) no portion of the Customer Data is unlawful or infringes upon the rights of any Third Party. At no time shall the Company be responsible or liable for the accuracy, availability, correctness, timeliness, or any other quality of or concerning the Customer Data. The Company is not responsible for any changes, additions, or deletions of or to the Customer Data made by the Customer or its Authorized Users.
4.3 Customer Data and Custom Prompt Storage. Any Customer Data, in any form or medium, that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model, as well as, for the avoidance of doubt, any Custom Prompts developed by the Customer, will be retained by the Company for thirty (30) days from the Customer’s last usage of such Customer Data and Custom Prompt(s), whereby following such thirty (30) day period, if not removed and/or deleted by the Customer prior to the expiration such thirty (30) day period, such specific Customer Data and Custom Prompts will be deleted by the Company.
4.4 No Sensitive Data. Unless written consent has been obtained by the Customer from the Company, the Customer shall not upload, transmit, store, disclose or make available through the Platform any Sensitive Data, and the Company will have no liability whatsoever for such Sensitive Data erroneously transmitted through the Platform. For the purposes of this Agreement, "Sensitive Data” means any Personal Data or end-user data that requires a heightened degree of protection by applicable Law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted requiring heightened standards for data protection or privacy. For the purposes of this Agreement, “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person. This includes any information that is deemed “personal information” or “personal data” as defined by applicable data protection Laws.
4.5 Use of Customer Data. The Company must use Customer Data in certain ways to power the processing of the Platform, including transmitting Customer Data uploaded by the Customer through the Natural Language AI Model. The Platform encrypts Customer Data in transit, and sends it to the Natural Language AI Model in order to generate the Output. Accordingly, the Company will (i) process Customer Data as needed through the Natural Language AI Model in order to deliver the Platform’s core functionality to the Customer, (ii) only process, transfer, and/or store Customer Data using secure, reasonable, and appropriate mechanisms, and (iii) exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
4.6 Customer Data License. During the Term, Customer grants to the Company a non-exclusive, non-transferable, non-assignable (except as set forth in Section 12.2 below), worldwide, royalty-free, fully-paid license to access and use Customer Data to provide the services and features available through the Platform, and for such purposes as further set forth in Section 4.5 herein, to the Customer and to monitor, develop, and improve the Platform generally. The Company reserves the right to monitor the Customer’s use of the Platform and the data collected therein, which may include reviewing Customer Data collected by or stored in the Platform as necessary to ensure compliance with applicable Laws and with the terms of this Agreement.
4.7 Aggregated Data Use. The Customer agrees that the Company may use, reproduce and disclose Customer Data, including, for the avoidance of doubt, any Custom Prompts, that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Customer or any other identifiable individual person or entity (“Anonymized Data”) for product/Platform improvement and other purposes consistent with the Company’s Privacy Policy. This right to use Anonymized Data will survive termination of this Agreement.
4.8 Customer Usage Data. The Customer acknowledges and agrees that the Company may, directly or indirectly, including through the services of Third Parties, collect and store information and data in connection with the Customer’s and its Authorized Users’ use of the Platform and about equipment on which the Platform is installed or through which it otherwise is accessed and used (the “Customer Usage Data”). The Company may collect such information and data through means including, but not limited to, the Customer’s access and use of the Platform. The Company may access, use, and provide Third Parties with access to and use of the Customer Usage Data for the following enumerated purposes: (i) making the Platform functional and usable for the Customer and its Authorized Users; (ii) improving the performance of the Platform; (iii) developing Updates, new versions, and new service offerings; and/or (iv) verifying the Customer’s and its Authorized Users’ compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Platform.
4.9 Privacy Policy. As applicable, the Customer’s access to and use of the Platform, as well as any communications which the Customer may have with the Company, is subject to the Company’s Privacy Policy, as updated by the Company from time to time, and is incorporated herein by reference. By using the Platform, or otherwise purchasing a Subscription, the Customers consents to the terms of the Privacy Policy
5. Intellectual Property Ownership.
5.1 Company Intellectual Property. Except for the limited right to access and use the Platform under this Agreement and the applicable Order Form, the Customer acknowledges and agrees that, as between the Parties, the Company, or its licensors, as the case may be, has and will retain any and all right, title, and interest in and to the Platform, the services provided therethrough, and any underlying software, as well as all derivative works made by any person or entity based upon the Platform, including all Intellectual Property Rights associated with the foregoing. The Customer will not assert or cause any other party (including, without limitation, any Authorized User) to assert any right, title, or interest in or to the Platform or other portion of the Company’s Intellectual Property Rights. If the Customer provides the Company with any feedback or suggestions about the Platform or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Customer, and the Customer irrevocably assigns to the Company all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give the Customer any rights of ownership in, or related to, the Platform or the Company’s Intellectual Property Rights.
5.2 Customer Intellectual Property. The Customer will retain ownership of the Outputs generated by the Platform, via the Natural Language AI Model, and subject to any rights of Third-Party Providers, if any. For the avoidance of doubt, the Company shall not be responsible for any Output generated by the Platform which infringes upon the Intellectual Property Rights of any Third Party. Further, at no time shall the Company be responsible or liable for the accuracy, availability, correctness, timeliness, or any other quality of or concerning the Output, or the Customer’s reliance on the Output.
6. Subscription Fees and Payment Terms.
6.1 Subscription Fees.
(a) All amounts due by the Customer under the Agreement for access to the Platform and the applicable Subscription shall be payable on the terms set forth on the applicable Order Form (the “Subscription Fees”).
(c) The timing for the Customer’s payment of the Subscription Fees (the “Billing Cycle”) will be set forth in the corresponding Order Form. Unless otherwise set forth in the Order Form, the Subscription Fees in connection with Customer’s Subscription will initially be due and payable on or before the beginning of the subscription start date (the “Subscription Start Date” and subsequently, on the same day of the following month, quarter, or year, as applicable, in accordance to the Customer’s Billing Cycle (the “Billing Date”).
6.2 Payment Card. To activate a Subscription, the Customer must provide to the Company upon its initial purchase of a Subscription and subsequently maintain at all times a valid, current credit or debit card (a “Payment Card”) and related billing information on file with the Company/within the Customer’s Account as a condition to be provided with and continuing to receive Platform access under such Subscription. The Customer agrees that the Company shall automatically charge such Payment Card for any Subscription Fees due in accordance with the Billing Cycle, without the requirement of a signature by the Customer or any additional action required on the part of the Customer. As such, the Customer expressly authorize the Company to charge the Customer’s provided Payment Card for all Subscription Fees owed to the Company in connection with the Subscription purchased for such Platform access. For the avoidance of doubt, payments of Subscription Fees are processed by the Company’s third-party payment processing provider and not directly by the Company. Notwithstanding the foregoing, the Customer expressly agrees to timely pay all Subscription Fees that are due no later than the Billing Date.
6.3 Payment. Specifically, all Subscription Fees must be paid by the Customer on or before the Billing Date before the Company shall be required to provide the Customer with access to the Platform. All Fees paid, by the Customer under this Agreement, including any prepayments, if applicable, are final and are non-refundable for any reason, even in the event of early termination or cancellation of a Subscription, except as expressly set forth elsewhere in this Agreement or an applicable Order Form.
6.4 Acceleration. In the event of termination of this Agreement for any reason other than termination by the Customer due to breach by the Company, unless otherwise set forth herein, the due dates for payment of all Subscription Fees will automatically be accelerated so that they become due and payable on the effective date of termination, even if longer terms had been provided previously.
6.5 Price Changes.
(a) The Company may, in its sole discretion, amend its Subscription Fees and pricing structure for payment of Subscription Fees in connection with the Platform and the Subscriptions. All changes in Subscription Fees shall be communicated by the Company to the Customer no less than thirty (30) days prior to the effective date of such change. Notwithstanding anything to the contrary herein, and except as provided for in an applicable Order form, for each Subscription, changes to Subscription Fees due will take effect only upon the renewal of a Subscription Term of that Subscription.
(b) To the extent that applicable Third Party’s impose increased costs or expenses on the Company that materially affect the Company’s cost of delivering the Subscriptions to Company, the Company reserves the right, in its sole discretion, to propose to pass through any such increased costs and expenses to the Customer by reasonably increasing the Subscription Fees with respect to the applicable Subscriptions upon at least thirty (30) days’ prior notice to the Customer; provided that if the Customer does not promptly agree in writing, or otherwise provide its consent, to any such increase, then the Company may not charge for the same, but may terminate the applicable Subscription(s) without further obligation to the Customer. If the Company exercises the foregoing termination right, the Company shall refund the Customer any unused prepaid fees on a pro-rata basis.
(c) In addition to the foregoing, to the extent that the Third-Party Provider of the Natural Language AI Model, including OpenAI or any other similar Third-Party Provider utilized by the Company from time to time, imposes “overage” fees related to the Customer’s use of the Platform, the Customer agrees to pay such “overage” fees within fourteen days of being invoiced by the Company.
6.6 Late Payment. The Customer’s late payments of Subscription Fees will accrue interest in the amount of one and one-half percent (1.5%) per month, or the maximum interest allowed under applicable Law, on all balances not paid when due on account of all invoices which are not reasonably in dispute. The Customer shall reimburse the Company for all costs incurred by the Company in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees. The Company may, at its option, upon notice and a reasonable opportunity to cure, suspend the Customer’s access to the Platform or the Subscriptions, in whole or in part, if the Company does not receive all amounts which are due and owing, and not reasonably in dispute, under the Agreement when due; provided that it shall restore normal services promptly upon the clearance of any such disputed amounts.
6.7 Free Trial. If the Customer is a new customer, the Company may elect, from time to time, to provide the Customer with the ability to use and evaluate the Platform at no cost (a “Free Trial Subscription”). Unless the Company expressly agrees otherwise in writing, the period of the Free Trial Subscription shall be fourteen (14) days from the date on which the Company grant the Customer with access to the Platform (the “Free Trial Period”). To request and access a Free Trial Subscription, the Company may require the Customer to sign up for a certain Subscription and to accept this Agreement. Further, the Company may require the Customer to provide the Company with a valid Payment Card, and the Customer expressly authorizes the Company to charge the full amount of the Subscription Fees applicable to such selected Subscription, and based on such Billing Cycle, on the date following the conclusion of the Customer’s Free Trial Period, unless the Customer notifies the Company, pursuant to Section 12.3, of the Customer’s desire to cancel its Free Trial Subscription before that date. Unless the Company makes available to the Customer a different Subscription plan and/or Billing Cycle and the Customer elects the same, in advance, FOLLOWING THE CONCLUSION OF THE FREE TRIAL PERIOD, THE CUSTOMER WILL AUTOMATICALLY BE TRANSITIONED TO AN ANNUAL SUBSCRIPTION PLAN THAT IS SUBJECT TO AN ANNUAL BILLING CYCLE WITH THE SUBSCRIPTION FEES PAID IN ADVANCE. The Customer expressly acknowledges, agrees, and consents to the Company charging the Payment Card that the Customer provides for the full amount of the Subscription Fees of the annual Subscription plan, pursuant to an annual Billing Cycle with the Subscription Fees paid in advance. The Company reserves the right to limit access to Free Trial Subscriptions to only new customers who have not previously used or accessed the Platform (and who have not been granted a prior Free Trial Subscription). The Company further reserves the right to terminate any active Free Trial Subscriptions, and to deny Free Trial Subscriptions, to anyone, for any reason and at any time, in the Company’s sole discretion.
6.8 Taxes. The Subscription Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, the “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 6, including for Subscription Fees previously invoiced, the Company will invoice the Customer and the Customer shall pay that amount (unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority).
7. Term and Termination.
7.1 Agreement Term. This Agreement will commence on its Effective Date and will remain in full force and effect for so long as any individual Order Form or Subscription remains in effect and for a period of ninety (90) days thereafter (the “Term”).
7.2 Subscription Term. The Customer may have the opportunity to purchase one or more Subscriptions during the Term of this Agreement. Each Subscription shall commence on the Subscription Start Date set forth in the corresponding Order Form and shall continue in effect until for the period of time prescribed in the Order Form, until it is terminated in accordance herewith (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
7.3 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein or therein, the Parties shall have the right to terminate this Agreement or any Subscription, by providing notice, in such manner as set forth in Section 12.3, as provided below:
(a) By either Party, if the other Party commits a material breach of this Agreement and such breach (i) is incapable of cure, or (ii) is capable of cure but remains uncured thirty (30) days after written notice of such breach is delivered to such other Party. For the avoidance of doubt, if the material breach relates to a specific Subscription, any other Subscriptions will remain active and subject to the term of this Agreement;
(b) By either Party, if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy Laws, Laws of debtor’s moratorium or similar Laws;
(c) By the Company, if the Company reasonably determines that further provision of the Platform would be (or would present a substantial risk) in contravention of any applicable Law or rule of any governmental unit or self-regulatory organization;
(d) By the Company, if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than thirty (30) days following written notice of such unpaid amounts being delivered to the Customer;
(e) By the Company, if OpenAI or any other Third-Party Provider of a Natural Language AI Model provider discontinues its license with the Company, whereby the Company is therefore unable to provide the Platform’s associated services and features; or
(f) Upon termination or non-renewal of all Subscriptions and active Order Forms.
7.4 Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, the Company will promptly terminate the Customer’s access to the Platform under such Subscriptions and, to the extent the Company possesses Customer Data, the Company will make any Customer Data available for the Customer to access for a period of thirty (30) days after expiration or termination. After such 30-day period, the Company will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing, the Company may retain Customer Data (a) contained in electronic archives and backups made in the ordinary course of business, (b) that the Company is required by Law to maintain; or (c) that the Company reasonably determines necessary to demonstrate to the other Party or any regulatory authority of the Company’s compliance with this Agreement, the Data Processing Agreement or any applicable Law or regulation; provided that all such Customer Data retained will remain subject to the protections set forth herein for so long as it remains in the Company’s possession or control. Upon termination of the Agreement, the Customer will immediately cease all use of and access to the Platform. The Customer shall pay all Subscription Fees reflected in each Order Form issued hereunder; provided, however, that where the Customer terminates this Agreement pursuant to Section 7.3(a) or the Company terminates this Agreement pursuant to Sections 7.3(c) or (e), the Company shall provide, if applicable, the Customer a pro-rata refund of Subscription Fees, paid in advance, for the remaining, unused portion of Platform access during such Billing Cycle.
7.5 Survival. Termination of this Agreement or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
8. Confidentiality.
8.1 Confidential Information. Each Party (the “Recipient”) acknowledges that the other Party (the “Discloser”) has business, technical, or financial information relating to the Discloser’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”), which includes the terms and conditions of this Agreement. The Company’s Confidential Information includes non-public information regarding features, functionality, pricing, and performance of the Platform, as well as all non-public user-visible aspects of the Platform. And, for avoidance of doubt, Customer Data shall not be deemed Confidential Information for the purposes of this Section 8.
8.2 Non-Use. The Recipient will take at least those measures that it takes to protect its own Confidential Information, but never less than a standard of reasonable care. The Recipient agrees: (i) not to use any Confidential Information of the Discloser for any purpose except to perform its obligations or to exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of Recipient to Third Parties, except to the Recipient’s own employees, officers, agents, contractors, or other representatives (“Personnel”) who have a legitimate need to know such Confidential Information in order to perform work in connection with this Agreement and who are subject to written confidentiality obligations as least as protective as those of this Agreement.
8.3 Exceptions. The Discloser agrees that these confidentiality obligations and restrictions on use will not apply to any information that the Recipient can document: (a) is or becomes generally available to the public through no action or inaction of the Recipient; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it without restriction by a Third Party; or (d) was independently developed without use of or reference to any Confidential Information of the Discloser. Nothing in this Section 8 precludes either Party from disclosing the other Party’s Confidential Information as required by Law or a legal process, provided that the Recipient (a) gives the Discloser prior written notice sufficient to permit the Discloser to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the Discloser (at the Discloser’s expense) in limiting the disclosure. In addition, a Party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers (solely in connection with the due diligence review of such Party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those in this Agreement).
8.4 Return of Confidential Information. Promptly following the earlier of (i) the expiration or termination of this Agreement or (ii) the request of the Discloser, Recipient will return to the Discloser, or, at the Discloser’s option, destroy all Confidential Information of the Discloser that are in written, electronic, or other tangible form, including, without limitation, all copies, extracts, and derivatives of such Confidential Information. In addition, upon the request of the Discloser, the Recipient will certify to the Discloser in writing the Recipient’s and its Personnel’s compliance with its obligations pursuant to this Section 8.4.
8.5 Redundancy. Notwithstanding the foregoing, the Recipient may retain Confidential Information (a) contained in electronic archives and backups made in the ordinary course of business, (b) that such Party is required by Law to maintain; or (c) that such Party reasonably determines necessary to demonstrate to the other Party or any regulatory authority the Recipient’s compliance with this Agreement or any applicable Law or regulation; provided that all such Confidential Information retained will remain subject to the protections set forth herein for so long as it remains in the Recipient’s possession or control. At such time as a Party’s basis for retaining such information ceases to exist, such party shall return or destroy such information as set forth above.
8.6 Equitable Remedies. The Parties acknowledge that disclosure or use of the other Party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each Party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of this Section 8 by the Receiving Party (without the need to pay any bond), in addition to any other rights and remedies that the Disclosing Party may have at Law.
9. Representations & Warranties; Disclaimers.
9.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2 Company Representations and Warranties. The Company represents and warrants that: (a) it has all rights, licenses, consents, and authorizations necessary to grant the rights and licenses granted in this Agreement; and (b) the Platform will perform substantially in conformity with its Documentation under normal use and circumstances. If the Platform fails to comply with the warranty in this Section 9.2, and notwithstanding any other agreement to the contrary, the Company shall, at its sole option, either: (i) repair or replace the Platform; or (ii) refund the Subscription Fees attributable to such period of incompliance, starting on the date the Customer provides written notice of the same, and subject to the Customer ceasing all use of the Platform.
9.3 Customer Representations and Warranties. The Customer represents and warrants that: (a) the Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of Customer Data that is collected, processed, analyzed, and/or stored by the Platform, or otherwise transmitted by and through the Platform, via the Natural Language AI Model; and (b) the provision and use of Customer Data as contemplated by this Agreement does not and will not violate any privacy policy, terms of use, or other agreement to which the Customer is a party or any Law or regulation to which the Customer is subject.
9.4 No Other Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER THE COMPANY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE MEMBERS, SHAREHOLDERS, OFFICERS, MANAGERS, DIRECTORS, AGENTS OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY, WITH RESPECT TO THE PLATFORM, OR OTHERWISE REGARDING THE AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM IS PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY.
9.5 Disclaimer of Warranties. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED; THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED; THAT THE SYSTEM AND SOFTWARE THAT MAKES THE PLATFORM AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, APPLICATIONS OR DATA NOT PROVIDED OR RECOMMENDED BY THE COMPANY; THAT THE OPERATION OF THE PLATFORM WILL BE SECURE; THAT THE PLATFORM’S FUNCTIONALITY AND ANY OUTPUT GENERATED BY THE PLATFORM WILL MEET THE CUSTOMER’S OR ITS AUTHORIZED USERS’ REQUIREMENTS; THAT OUTPUT GENERATED BY THE PLATFORM WILL ACCURATELY PROVIDE THE REQUISITE, DESIRED, OR EXPECTED OUTPUTS OR GENERALLLY BE ACCURATE, COMPLETE, LEGAL, AND NON-INFRINGING; THAT THE OUTPUT GENERATED WILL CONFORM TO STANDARD PATENT PRACTICE OR THAT A GIVEN PATENT APPLICATION WHICH INCORPORATES ANY OUTPUT GENERATED WILL BE APPROVED. THE CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S AND ITS AUTHORIZED USERS’ PURPOSES.
10. Indemnification.
10.1 Company Indemnification of Customer.
(a) The Company will defend, indemnify, and hold harmless the Customer and its respective directors, officers, managers, shareholders, members, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a Third Party claim (collectively, the “Third Party Claims”) alleging (i) that the Platform or the Customer’s permissible use thereof infringes or violates any Third Party Intellectual Property Rights, or (ii) a breach of the Company’s confidentiality obligations under this Agreement.
(b) Such indemnity pursuant to Section 10.1(a), however, is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from the Customer’s (i) unauthorized alteration of the Platform; (ii) any use of the Platform by the Customer that violates any Law (including any regulation of any governmental authority or self-regulatory agency or authority applicable to the Customer); or (iii) use of the Platform in a manner that violates Section 2 of this Agreement. In order to resolve any such Third Party Claim relating to Section 10.1(a), the Company may, but is not obligated to, (i) modify or replace the Platform to make it non-infringing; (ii) procure any rights from a Third Party necessary to provide the applicable Subscription; or (iii) replace the Platform with work product that is materially equal in capabilities, capacity, performance, and ease of use but is non-infringing. If none of the foregoing remedies is available to the Company on commercially reasonable terms, the Company may terminate this Agreement and the Company will refund to the Customer a prorated portion of any prepaid Subscription Fees allocable to the period after such termination. THIS SECTION
10.1 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
10.2 Customer Indemnification of Company. The Customer will defend, indemnify, and hold harmless the Company and its respective directors, officers, managers, shareholders, members, employees, licensors, representatives, and agents (the “Company Indemnified Parties”) from and against any and all Third Party Claims alleging (i) unlawful, or fraudulent, misconduct by the Customer or its agents; (ii) a breach by the Customer or its agents of its obligations under Section 2 and Section 9.3; (iii) alleging that the Company’s use or handling of the Customer Data (in accordance with the terms of this Agreement and the Law) violates any Third Party Intellectual Property Rights or the Law; or (iv) alleging that any Output generated violates any Third Party Intellectual Property Rights or the Law
10.3 Procedure for Handling Indemnification Claims. As a condition to a Party’s obligations under Sections 10.1 or 10.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (a) prompt written notice of the Third Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (b) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (c) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
11. Limitation of Liability.
11.1 Exclusions of Liability. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, OR ANY OF THEIR MEMBERS, SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR THE PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
11.2 Maximum Liability. THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ALL CLAIMS UNDER, IN CONNECTION WITH OR ARISING OUT OF, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE FEES RECEIVED BY THE COMPANY FROM THE CUSTOMER IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO: (A) THE CUSTOMER’S OBLIGATION TO PAY THE SUBSCRIPTION FEES, (B) WILLFUL MISCONDUCT OF A PARTY, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
12. Miscellaneous.
12.1 Publicity. The Customer expressly grants the Company the right to identify the Customer as its customer on the Company’s website and in its advertising and promotional materials. In connection with the foregoing, the Customer grants the Company, during the Subscription Term, a non-exclusive, non-transferrable, limited right and license to use Customer’s name and logo.
12.2 Assignment. Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 12.2 shall be void and of no effect. Notwithstanding the foregoing, the Company may assign this Agreement to any Third Party acquiring all or substantially all of the Company’s equity or assets pursuant to a merger, sale, reorganization, or consolidation with that Third Party without the Customer’s consent. The Company may further delegate its obligations, in whole or in part, to any of its Affiliates without the Customer’s consent. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
12.3 Notices. The Company may deliver any notice required or permitted hereunder (i) via a notice appearing in the Customer’s Account or via the Platform (ii) via electronic mail to the Customer’s contact information on record with the Company in the Customer’s Account information, which notice will be deemed received by the Customer when posted or transmitted by the Company. Where the Company permit notices to be given to the Company via a feature or functionality of the Platform (for example, changes to the Customer’s Account or Payment Card information), the Customer may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by the Company, but only to the extent the notice is of a type for which the feature or functionality is intended to convey (for example, using the Customer’s Account page to update the Customer’s contact information). Otherwise, all notices to the Company under these Terms (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to the Company by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) reputable national or international mail courier with proof of delivery. The Company’s current address is:
Equipat IP LLC
Attn: Terms Notices
2870 Peachtree Rd NW #484, Atlanta
GA 30305
12.4 Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents. Except as expressly agreed by the Parties, neither Party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
12.5 No Exclusivity. Nothing in this Agreement shall restrict the Company’s right to contract with any Third Party who provides products and/or services similar to or identical to the Customer.
12.6 Entire Agreement. This Agreement, and any terms, exhibits, schedules, policies, or addenda attached hereto or referenced, or otherwise incorporated, herein, including any applicable Order Forms, constitute the entire Agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof. To the extent, there is any conflict among the terms of this Agreement and an applicable Order Form, such conflict will be governed in the following order: (a) the terms of the Order Form, and then, (b) this Agreement and any applicable schedules and exhibits, the terms of which are incorporated into such Order Form by reference.
12.7 Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement, and signed by an authorized representative of each Party. Notwithstanding the foregoing, the Company reserves the right, in its sole discretion, to make any changes to the Platform that it deems necessary or useful to: (i) maintain or enhance the quality or delivery of the Platform, (ii) the competitive strength of or market for the Platform, (iii) the Platform’s cost efficiency or performance; or (iv) comply with applicable Law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
12.8 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by Law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.9 Force Majeure. Neither Party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of Third Party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a Party’s reasonable control.
12.10 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed, and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
12.11 Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
12.12 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia and without regard to the U.N. Convention on the International Sale of Goods (CISG).
12.13 Disputes; Arbitration. Any dispute, controversy, or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any Party involved, shall be submitted to, and settled by, arbitration pursuant to the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) by Arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Atlanta, Georgia, or as agreed upon by the Parties, and judgment on the award rendered by the Arbitrators may be entered in any court with jurisdiction. The arbitration shall be conducted in the English language. The arbitration shall be conducted by three (3) neutral and impartial arbitrators (the “Arbitrators”). Each Party shall appoint a neutral and impartial Arbitrator of its choosing, and those Arbitrators shall agree upon and appoint the third neutral and impartial Arbitrator. The Arbitrators shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief (including an injunction or preservation of evidence) in any court of law having proper jurisdiction, in addition to all other available remedies. The Parties agree that the prevailing Party in any arbitration action hereunder shall be entitled to receive, in addition to all other damages and awards, the costs incurred by such Party in conducting the arbitration, including reasonable attorneys’ fees and expenses, and arbitration costs. In addition to and not in limitation of the foregoing mandatory arbitration requirements, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief – including an injunction or preservation of evidence – in any court of law having proper jurisdiction, in addition to all other available remedies.
12.14 Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email, or other means of conventional electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[End of Terms of Service]