Master Services Agreement
Last Updated: 10/21/2024
This Maven AGI, Inc. (“Maven” or “Company”) Master Services Agreement (“Agreement”), dated as of the effective date of the Order Form (“Effective Date”) is entered into by and between Customer (as defined in the Order Form (also referred to as “you” or “your”) and Maven AGI (each a “Party” and collectively, “Parties”). This Agreement governs your use of Maven AGI software, platform, APIs, and related tools, and Maven AGI documentation, training manuals, user instruction, and similar materials (“Documentation”) (collectively, the “Application”).
This Agreement, together with any Order Form(s) (as defined below) signed by Customer, constitute the entire agreement between the Parties regarding the subject matter herein. Capitalized terms shall have the meaning set forth herein, unless otherwise defined in the Order Form. In the event of a conflict between this Agreement and the Order Form, the terms of the Order Form shall prevail.
“Order Form” means the ordering documents relating to Customer’s purchase or other use of the Application.
Provision of Application. Subject to your compliance with this Agreement and your timely payment of all applicable fees, Company hereby permits you to access and use the Application (via an API or any other relevant user interface Company may provide) strictly in accordance with the terms of this Agreement. Customer shall, and shall ensure that any of its employees, agents, or individual end users authorized to use the Application on Customer’s behalf (“Customer Users”), comply with this Agreement.
Implementation. Upon payment of any applicable fees set forth in each Order Form, Company agrees to use reasonable commercial efforts to provide standard implementation assistance for the Application only if and to the extent such assistance is set forth on such Order Form ("Implementation Assistance").
Company Rights.
Customer Reference. Customer grants Company, its affiliates, and assigns, a non-exclusive, royalty-free, worldwide license to use, display, and reproduce the Customer's trade names, trademarks, and service marks (collectively, "Customer Marks") to identify Customer as a client of Company on its website, in promotional materials, and in other marketing communications (“Company Promotional Materials”). This authorization is provided for the sole purpose of promoting and publicizing the professional relationship between Customer and Company. Customer affirms that it has the right to grant this license and that such use of Customer Marks shall not infringe upon the rights of any third party. Company agrees to use the Customer Marks in accordance with any Customer brand guidelines provided to Company, and in a manner that maintains the integrity and reputation of the Customer’s brand. Customer may opt-out of this usage by providing written notice to Maven AGI at [email protected], and Maven will cease such usage within 30 days of receiving the opt-out request, provided that for archival records, backup data, or other materials that cannot be reasonably altered (e.g. previously distributed print materials), Maven AGI will cease active use but is not required to delete or modify existing copies.
Customer Case Study. Customer authorizes Company to publish case studies in Company’s Promotional Materials, which discuss Customer's use of the Application, highlighting the effectiveness, implementation process, and outcomes of Customer’s use of the Application, provided that such case studies shall not disclose any Customer Confidential Information.
Term of Agreement. Subject to termination as described in this Agreement, the term of each subscription shall commence upon the date payment is received from Customer and shall remain in effect for twelve (12) months (the “Initial Term,” together with any Renewal Term(s), the “Term”). Thereafter, and subject to timely receipt of Customer’s payment pursuant to Section 4, the term shall renew automatically for successive terms of twelve (12) months (each, a “Renewal Term”), unless either Party provides written notice of its intent not to renew this Agreement at least sixty (60) days before the end of the then-current term.
Payment
Fees and Overages. Customer shall pay Company all subscription fees set forth in the Order Form (“Subscription Fees”). Subscription Fees are due in advance and payable within thirty (30) days of receipt of an invoice from Company. Subscription Fees are non-refundable, except as may be expressly set forth herein. Any Renewal Term hereunder shall not be effective until the Subscription Fees for such renewal have been paid in full. Subscription Fees may be increased upon sixty (60) days’ prior notice to Customer, but in no event will any previously agreed upon pricing terms be retroactively increased for the then-active subscription order. If Customer exceeds the agreed subscription usage as specified in any applicable Order Form, Customer shall pay overage fees which will be calculated based on the rates set forth in the Order Form (“Overage Fees”). Company will notify Customer in writing when Customer’s usage reaches 90% of the agreed subscription usage limit. Overage Fees will be calculated based on the rates set forth in the Order Form. Company shall notify Customer electronically within ten (10) business days of any overage. Overage Fees shall be invoiced within sixty (60) days of being incurred, and Customer agrees to pay Overage Fees within thirty (30) days of receipt of invoice.
Free Trial Services. If Customer is granted access to the Application during a free trial period “Trial Services”), Maven AGI will make the applicable Trial Services available to Customer pursuant to this Agreement starting from the time that Customer registers and is approved for such Trial Services until the earlier of: (a) the end of the Trial Services period communicated to Customer; (b) the start date of any Order Form executed by Customer for Service(s) in exchange for payment; or (c) termination by Maven AGI in its sole discretion. ANY CUSTOMER INFORMATION THAT CUSTOMER PROVIDES OR MAKES AVAILABLE TO MAVEN AGI DURING THE PROVISION OF TRIAL SERVICES MAY BE PERMANENTLY DELETED, AT MAVEN AGI’S DISCRETION, UNLESS CUSTOMER EXECUTES AN ORDER FORM FOR THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES OR EXPORTS SUCH CUSTOMER INFORMATION BEFORE THE END OF THE TRIAL SERVICES PERIOD. NOTWITHSTANDING THE “DISCLAIMER OF WARRANTIES”, “INDEMNIFICATION” AND “LIMITATION OF LIABILITIES” SECTIONS BELOW, FREE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MAVEN AGI’S LIABILITY WITH RESPECT TO THE TRIAL SERVICES SHALL NOT EXCEED $100.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITIES” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MAVEN AGI AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE TRIAL SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
Restrictions. Customers shall only use the Application as authorized under this Agreement and not for any illegal or unlawful proposes. Customer shall not, and shall not authorize, permit, or enable others (including any Customer Users) to: (a) copy the Application; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; (g) except as may be permitted under this Agreement, combine the Application or any part thereof in any other programs; (h) access or use the Application in violation of any law, regulation, or rule; (i) access or use the Application for purposes of benchmarking; (j) access or use the Application in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right (as defined below) or other right of any third party; (k) use, transmit, distribute, integrate or modify the Application or any other proprietary software code made available by Company to Customer hereunder in any manner that could cause such code or any portion thereof to be subject to any Copyleft License (as defined below); (l) send or store any material containing viruses, worms, Trojan horses or other harmful code, files, scripts, agents or programs; (m) interfere with or disrupt the integrity or performance of the Application; (n) attempt to gain unauthorized access to the Application or its related systems or networks; (o) use the Application to upload, create, access, display, store, or distribute any materials that infringe upon the intellectual property, privacy or proprietary rights of any third party; (p) permit the Application to be accessed or used by any person other than Customer Users in accordance with the Agreement and (q) use or attempt to use the Application in violation of this Agreement or permit or encourage anyone else to do so. “Copyleft License” means any license that requires, as a condition of use, modification and/or distribution of software subject to such license, that any such Software or any other software incorporated into, derived from, linked with, or used or distributed with such software subject to such license (i) be made available or distributed in Source Code form, (ii) be publicly licensed for the purpose of preparing derivative works or to be reverse engineered, reverse assembled, decompiled, or disassembled, or (iii) be redistributable at no license fee. Copyleft Licenses include the GNU General Public License, the GNU Affero General Public License, the GNU Lesser General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License and all Creative Commons “sharealike” licenses.
Intellectual Property Rights. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application as expressly granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain its entire right, title, and interest in and to the Application, including all improvements, enhancements, modifications, and derivative works of the Application, including without limitation, copyrights, trademarks, trade secret, patent, and other intellectual property rights (“Intellectual Property Rights”) therein or relating thereto, except as expressly granted to you in this Agreement. If Customer elects to provide Company with any feedback, comments or suggestions for improvements of any kind related to the Application (“Feedback”), the Feedback will be the sole and exclusive property of Company and Company will have the right to use and disclose such Feedback in any manner and for any purpose, without remuneration, compensation, or attribution to Customer. Customer hereby assigns to Company any and all right, title and interest that Customer may have in and to any Feedback. For the avoidance of doubt, Feedback shall not include Confidential Information of Customer.
Storage and Processing of Data. You acknowledge that when you use the Application, information provided by you or Customer Users as part of your use of, or generated in connection with such person’s use of, the Application (“Customer Data") is stored on the Company platform and processed by Company and its third party service providers. By using the Application and providing Company with Customer Data, you consent to all actions taken by Company with respect to the Customer Data in compliance with this Order Form and Agreement, and any applicable terms of service governing Customer Users’ use of the Application. To the extent that Customer Data includes Personal Data (as such term is defined in the Data Processing Addendum or applicable data privacy law), the Parties agree that Company’s processing of such personal data shall be in accordance with the terms of the Maven AGI Privacy Policy and Data Processing Addendum, as applicable. As between the Parties, you are and will remain the sole and exclusive owner of all right, title and interest in and to Customer Data. You hereby grant to Company a perpetual, irrevocable, nonexclusive, royalty-free, fully-paid, worldwide license to access, use, process, reproduce, and create derivative works of Customer Data solely as necessary to enforce this Agreement and exercise its rights and perform its obligations hereunder, including providing and improving the Application or aggregating and/or anonymizing Customer Data so that it no longer identifies Customers Confidential Information (as defined below) or constitutes Personal Data under applicable privacy laws. Customer represents and warrants that it: (i) owns or otherwise has all necessary rights in and to the Customer Data and to provide Company the rights granted herein to use such Customer Data in accordance with the Agreement; and (ii) provides all notices, obtain all consents and takes all other steps required by applicable law in relation to the use of the Application as envisaged by the Agreement.
AI/Machine Learning.
AI Tools; Inputs and Outputs. Company may use or integrate certain large language models, generative AI tools, or other machine learning models (“AI Tools”) to provide functionalities related to the Application. Data and other content may be provided to the AI Tools (“Input”) in order for the AI Tools to generate certain output (“Output”). At this time, Maven AGI uses OpenAI and Anthropic large language models (“LLMs”) to generate Outputs. OpenAI’s Business Terms are available here and Anthropic’s Commercial Terms are available here. OpenAI and Anthropic are additionally listed as subprocessors in Maven AGI’s Data Processing Addendum. If, at any time following the Effective Date, Maven AGI uses other LLM sub processors or AI Tools to process customer content, it will provide you with notice either in this Agreement or through a prominent notification in the Services, and will update its Data Processing Addendum accordingly. With respect to third-party AI Tools used by the Application, which are disclosed in this Agreement or will be disclosed via a clear notice in the Application, your use of such AI Tools are governed by the terms of service and usage policies of such AI Tools. MAVEN AGI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY OUTPUTS. YOU SHOULD NOT RELY ON ANY OUTPUTS WITHOUT INDEPENDENTLY CONFIRMING THEIR ACCURACY. OUTPUTS MAY CONTAIN MATERIAL INACCURACIES EVEN IF THEY APPEAR ACCURATE BECAUSE OF THEIR LEVEL OF DETAIL OR SPECIFICITY. THE SERVICE AND ANY OUTPUTS MAY NOT REFLECT CORRECT, CURRENT OR COMPLETE INFORMATION. ADDITIONALLY, DUE TO THE NATURE OF GENERATIVE AI MODELS, OUTPUTS MAY NOT BE UNIQUE, AND OUTPUTS THAT THE SERVICE GENERATES BASED ON MATERIALS SUBMITTED BY THIRD PARTIES (“THIRD-PARTY OUTPUTS”) MAY BE SIMILAR OR IDENTICAL TO OUTPUTS THAT THE SERVICE GENERATE BASED ON YOUR INPUTS. YOU ACKNOWLEDGE THAT THIRD-PARTY OUTPUTS ARE NOT YOUR OUTPUTS AND THAT YOU HAVE NO RIGHT, TITLE, OR INTEREST IN OR TO ANY THIRD-PARTY OUTPUTS.
Special Restrictions on Use of AI Tools. With respect to Outputs, you agree that you: (i) will not mislead any third party, including Customer Users, as to AI Tools’ involvement in services provided through the Application, (ii) shall provide notice to all Customer Users regarding any content generated by AI Tools, (iii) will not represent any Output as being approved or vetted by Company; (iv) will not represent any Output as being an original work or a wholly human-generated work; and (v) will not use the Output for automated decision-making that has legal or similarly significant effects on individuals, unless it does so with adequate human review and in compliance with applicable laws. You also acknowledge the inherent limitations with any AI Tools and agree to review all output of such AI Tools to ensure its accuracy and applicability.
Customer Ownership and License; No Model Training. As between you and Maven AGI, and to the extent permitted by applicable law, Customer retains all ownership rights in Input and Customer owns all Output, and Maven AGI hereby assigns to Customer all of Maven AGI’s right, title, and interest, if any, in and to Output. By using the Service, You grant Maven AGI a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute Inputs and Outputs for the purpose of providing and improving the Services. NOTWITHSTANDING THE FOREGOING, MAVEN AGI DOES NOT USE YOUR INPUTS AND OUTPUTS TO TRAIN ITS AI MODELS, AND THE THIRD-PARTY AI TOOLS INCLUDING LLM PROVIDERS ARE PROHIBITED FROM USING YOUR INPUTS AND OUTPUTS TO TRAIN THEIR MODELS.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”), provided that no such Updates have the effect of materially degrading the overall functionality of the Application. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Third-Party Materials. The Application may make available third-party content (including data, information, applications, and other products, services, and/or materials) (“Third-Party Materials”) and will clearly indicate such content via the Application as Third Party Materials. Third-party services that serve as sub processors for Maven AGI are additionally listed in the Maven AGI Data Processing Addendum. You acknowledge and agree that, except as otherwise set forth herein or in the Data Processing Addendum, Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Confidentiality.
Definitions. “Confidential Information” means any business, technical or financial information, materials, or other subject matter disclosed by one Party (“Discloser”) to the other Party (“Recipient”) that is identified as confidential at the time of disclosure or should be reasonably understood by Recipient to be confidential under the circumstances. For the avoidance of doubt, Confidential Information includes Customer Data. Confidential Information does not include any information that: (a) is or becomes generally available to the public through no fault of Recipient, (b) was in Recipient’s possession or known by it prior to receipt from Discloser, (c) was rightfully disclosed to Recipient without restriction by a third party, or (d) was independently developed without use of Discloser’s Confidential Information.
Obligations. Recipient agrees to: (a) only use Discloser's Confidential Information to exercise its rights and fulfill its obligations under this Agreement, (b) take reasonable measures to protect the Confidential Information, and (c) not disclose the Confidential Information to any third party except as expressly permitted in this Agreement. Recipient may disclose Confidential Information only to its employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations at least as restrictive as those of this Agreement. Recipient will be responsible for any breach of this Section by its employees, contractors, and agents. Recipient may disclose Confidential Information to the extent required by law, provided that Recipient uses reasonable efforts to notify Disclosure in advance.
Disclosures. If the receiving party is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted it shall: (i) promptly, and prior to such disclosure, notify the disclosing party in writing of such requirement, so that disclosing party can seek a protective order or other remedy or waive its rights under this Section; and (ii) provide reasonable assistance to disclosing party, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If disclosing party waives compliance or, after providing the notice and assistance required under this Section, the receiving party remains required by applicable law to disclose any Confidential Information, then the receiving party shall disclose only that portion of the Confidential Information that it is legally required to be disclosed and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment set forth herein.
Access and Security. You have and will retain sole responsibility for: (a) the content of all Customer Data; (b) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of third-party services; (c) providing the device, Internet connection, and/or other equipment or services that you or Customer Users need to access or use the Application; and (d) your access credentials, logins and passwords, directly or indirectly by or through your systems and your or your Customer Users’ access credentials, logins or passwords, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Responsibility for Use of Application. You are responsible and liable for all uses of the Application by Customer or Customer Users. Customer will ensure that Customer Users agree to and comply with the terms of this Agreement and any additional written terms that Company may provide from time to time. Company may audit the accounts and/or passwords for Customer Users from time to time and if such audit reveals that accounts and/or passwords have been provided to individuals who are not Customer Users, Company may disable or require Customer to disable such accounts or passwords. Specifically, and without limiting the generality of the foregoing, you are solely responsible and liable for all actions taken under the accounts of Customer Users and breach of the Agreement by Customer Users.
Representations.
From Maven AGI. Maven AGI represents and warrants that (i) it has the authority to enter into this agreement, to grant the rights granted by it under this agreement, and to perform its obligations under this agreement; (ii) it will comply with all applicable laws and regulations in effect during any portion of the term of this Agreement as they apply to Company’s obligations under this agreement; and (iii) Customer’s use of the Application in accordance with this Agreement will not infringe or misappropriate any third-party intellectual property rights.
From Customer. You represent and warrant that you (i) are authorized and have all necessary rights, regulatory approvals, corporate power and authority, to enter into this agreement on your own behalf if you are an individual, or on behalf of your company, if you are entering into this agreement on behalf of an entity; (ii) have the necessary rights and consents to share Customer Data with Company and to enable Company to receive, process, and use Customer Data for the purposes contemplated in this Agreement; (iii) will comply with all applicable laws in connection with the Activities contemplated under this Agreement; and (iv) will not authorize, enable, or permit any unauthorized use of the Application.
Termination.
Rights. Either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of any material breach of this Agreement by the other party, provided that such breach is not cured within such thirty (30) day period. Additionally, Company may terminate this Agreement immediately upon written notice in the event of any breach involving Company’s intellectual property or Confidential Information.
Obligations. Upon expiration or termination of this Agreement: (i) Customer shall immediately cease use of the Application and Company’s Confidential Information; and (ii) Company shall promptly destroy all of Customer’s Confidential Information upon written request by the Customer, provided that Company may retain information as necessary to comply with applicable laws or regulations.
Deletion. Within sixty (60) days of termination or expiration of this Agreement or an uncured failure to pay Subscription Fees when due, Company shall have the right to delete all Customer Data.
Survival. The following provisions of this Agreement will survive its termination (in addition to (i) any liability or payment obligation arising under this Agreement prior to such termination or expiration, and (ii) any other provisions of this Agreement that are stated to, or which by their terms or nature would be expected to, survive any termination of this Agreement), and shall continue in full force and effect: Intellectual Property Rights, Storage and Processing of Data; Confidentiality; Indemnification; Disclaimer of Warranties; Limitation of Liability; General.
Indemnification.
By Maven. Company shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, successors, and assigns (“Customer Indemnitee”) from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) (“Losses”) incurred by the Customer Indemnitee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Application infringes or misappropriate any third party intellectual property rights, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Company, at Company's sole discretion, to (A) modify or replace the Application, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that none of these alternatives is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. The foregoing obligations of Company do not apply with respect to the Application or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Company (including without limitation any Customer Data, Inputs or Outputs), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Company, (iv) combined with other products, processes or materials not provided by Company (where the alleged Losses arise from or relate to such combination or derivation), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer's use of the Service is not strictly in accordance herewith.
By Customer. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by the Company Indemnitee arising from or relating to: (i) Customer Data; (ii) Inputs; and (iii) Customer’s breach of this Agreement. Company shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Disclaimer of Warranties. EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, THE APPLICATION (INCLUDING ANY RESULTS FROM THE APPLICATION) IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS (COLLECTIVELY, “COMPANY PARTIES”), EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION (INCLUDING ALL OUTPUTS), INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION AND ANY OUTPUTS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE SECURE, ACCURATE, OR ERROR-FREE, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED OR THAT ANY DATA WILL BE SECURE, NOT LOST, OR ALTERED. COMPANY SHALL NOT BE RESPONSIBLE FOR STORING, BACKING UP OR ARCHIVING CUSTOMER DATA AND COMPANY SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF DATA. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SERVICES USE AI TOOLS AND OTHER EXPERIMENTAL TECHNOLOGY AND MAY PROVIDE INACCURATE OR OTHERWISE INAPPROPRIATE CONTENT, WHICH THE COMPANY SHALL NOT BE RESPONSIBLE FOR.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR IN CONNECTION WITH CLAIMS ARISING FROM UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (A) EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THE AGREEMENT EXCEED TWO (2) TIMES THE FEES PAID OR PAYABLE BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM; AND (B) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR LOST PROFITS OR LOST REVENUES, COST OF SUBSTITUTE GOODS OR SERVICES, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country requiring any export license or to which export, re-export, or release is prohibited by law, rule, or regulation.
Force Majeure. No failure or omission by the Company in the performance of any obligation of this Agreement will be deemed a breach of this Agreement or create any liability if the same will arise from any cause or causes beyond the control of the parties, including, but not limited to, the following: acts of God; acts or omissions of any government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; flood; storm; earthquake; accident; war; rebellion; insurrection; riot; acts of terror, and invasion. Company shall notify Customer of such force majeure circumstances as soon as reasonably practicable, and shall promptly undertake all reasonable efforts necessary to cure such force majeure circumstances.
Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
General.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law. This Agreement is governed by and constructed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in state or federal courts located in Boston, Massachusetts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Entire Agreement. This Agreement, together with the Order Form and Data Processing Addendum, and any terms incorporated by reference, constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by email to the following email address: [email protected] for Company and for Customer at the email address designated on the Order Form. Such notices shall be deemed effective on the first day following the date of receipt.
Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by Customer (whether by operation of law or otherwise) without the prior written consent of Company. Company may assign this Agreement without Customer’s consent to any corporate affiliate or to any successor by way of merger, consolidation or other corporate reorganization of Company or a sale of all or substantially all of the assets of Company. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
Counterparts. The Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.