Effective Date: September 5, 2022
Updated: July 2023
These AI Platform Terms of Service (“AI Platform Terms”) constitute a binding contract between Licensee (defined in Section 1) and Octai Inc. (“Octai”) that govern Licensee’s use of the AI Platform (defined in Section 1).
BY ACCEPTING THESE AI PLATFORM TERMS THROUGH THE REQUIRED PROCESS OR OTHERWISE ACCESSING OR USING THE AI PLATFORM, LICENSEE REPRESENTS AND WARRANTS THAT: (1) LICENSEE HAS READ AND UNDERSTANDS THESE AI PLATFORM TERMS, AND AGREES TO BE BOUND LEGALLY BY THESE AI PLATFORM TERMS; (2) LICENSEE IS EITHER AT LEAST 18 YEARS OF AGE OR HAS THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO USE THE AI PLATFORM AND WHO WILL SUPERVISE LICENSEE’S USE; AND (3) IF LICENSEE IS ACCESSING THE AI PLATFORM ON BEHALF OF A LEGAL ENTITY, THEN LICENSEE HAS THE AUTHORITY TO AND HEREBY DOES BIND SUCH LEGAL ENTITY TO THESE AI PLATFORM TERMS. IF LICENSEE DOES NOT AGREE WITH THESE AI PLATFORM TERMS OR OTHERWISE HAVE THE AUTHORITY TO ACCEPT THEM, THEN LICENSEE MUST REJECT THESE AI PLATFORM TERMS THROUGH THE REQUIRED PROCESS.
NO END USER MAY ENTER INTO THESE AI PLATFORM TERMS IN CONNECTION WITH ANY USE OF THE AI PLATFORM BY OR FOR THE BENEFIT OF ANY AGENCY OR INSTRUMENTALITY OF ANY GOVERNMENT. IF YOU ARE SEEKING TO ACCESS THE AI PLATFORM ON BEHALF OF ANY SUCH ENTITY, THEN YOU MUST CONTACT Octai AT SUPPORT@AKK.IO AND ENTER INTO A SEPARATELY NEGOTIATED LICENSE AGREEMENT WITH Octai. ALL USE OF THE AI PLATFORM IN VIOLATION OF THE PRECEDING SENTENCES IN THIS PARAGRAPH CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT.
a. “AI Platform” means Octai’s proprietary web-based software platform available at https://www.oct.ai or https://www.Octai.com (each a, “Licensee Site”) that has been programmed to help end-users build and deploy artificial intelligence models and to implement improvements upon itself.
b. “AI Platform Arising IP” means all Technology, other than the Licensee Models, that: (i) is or has been generated, developed, fixed in a tangible medium, conceived or reduced to practice by or on behalf of either party before, on or after the date these AI Platform Terms take effect; and (ii) arises from or in connection with any execution, operation or use of the AI Platform (including the AI Platform processing, storing, organizing, arranging, selecting, aggregating, adapting or otherwise using or exploiting any data (including Licensee Data), content, information, materials or other inputs transmitted, submitted or uploaded to the AI Platform). Without limiting the foregoing and for clarity, the AI Platform Arising IP includes any updates, error corrections, bug fixes, enhancements or improvements to the AI Platform developed by or on behalf of Octai.
c. “Octai Confidential Information” means any information Octai or any party acting on its behalf discloses to Licensee, whether in writing or orally, and whether before, on or after the date the AI Platform Terms take effect, which is either designated as “confidential” at the time of disclosure or reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. For the avoidance of doubt and notwithstanding the foregoing, Octai Confidential Information includes the AI Platform and all information about its performance.
d. “Intellectual Property Rights” means all intellectual property or industrial rights arising anywhere throughout the world, including: (i) all patents and patent applications; (ii) all rights associated with the protection of trade secrets and confidential information; (iii) all copyrights and mask work rights, and all rights of paternity, integrity, attribution and any other rights of authors; (iv) all rights in trademarks and other indicators of origin, and all rights to goodwill related thereto; (v) all rights in databases, data collections and data; (vi) all rights in registrations and applications to any of the foregoing; and (vii) any similar, corresponding or equivalent rights to any of the foregoing.
e. “Licensee” means: (i) in the case of an individual who accepts these AI Platform Terms or otherwise accesses or uses the AI Platform on his or her own behalf, such individual; or (ii) in the case of an individual who accepts these AI Platform Terms or otherwise accesses or uses the AI Platform on behalf of a legal entity, the legal entity.
f. “Licensee Data” means any table, video, image, audio, text, sequence data or other content that Licensee: (i) owns or controls prior to entering into these AI Platform Terms or on or after that date but independent of any access to or use of the AI Platform; and (ii) uploads to the AI Platform.
g. “Licensee Model” means the specific copy of a predictive model that: (i) Licensee generates on the AI Platform by clicking on the “Create Predictive Model” button of the AI Platform and thereby causing the AI Platform to process and analyze Licensee Data; and (ii) is visually presented to Licensee in digital format on the AI Platform’s user interface. Notwithstanding the foregoing and for clarity, (1) Licensee Models are deemed to exclude any Technology and Intellectual Property Rights therein that are identified as owned by Octai in these AI Platform Terms and that are in whole or in part incorporated into or embodied by the predictive models covered by the immediately preceding sentence in this Section 1(g); (2) all such Technology and Intellectual Property Rights therein remain Octai’s sole property; and (3) Licensee’s rights to such Technology and Intellectual Property Rights therein are governed solely by these AI Platform Terms.
h. “Order” means the paid subscription Licensee places to obtain access to the AI Platform on a Licensee Site through the required process, including any order details as reflected in any electronic confirmation transmitted to Licensee.
i. “Technology” means any or all embodiments of Intellectual Property Rights, including: (i) works of authorship (including software and documentation); (ii) inventions (whether or not patentable), discoveries and improvements; (iii) proprietary and confidential information, trade secrets and know-how; (iv) databases, data compilations, and data (including technical data); (v) tools, methods, techniques, processes, procedures, algorithms and models; and (vi) all instantiations or embodiments of any of the foregoing in (i) through (v) inclusive.
j. “Usage Caps” means any limits on the number and/or frequency of Licensee Models that Licensee may generate on the AI Platform specified in an Order.
a. Free Trial; Free Tier; Paid Plans. The AI Platform is available to Licensee for free on a trial basis for a two week period (“Free Trial”), and thereafter subject to certain monthly usage limitations (“Free Tier”). After expiration of the Free Trial, Octai offers paid access to the AI Platform under various different paid plans as further specified in an Order (each, a “Paid Plan”). These AI Platform Terms govern Licensee’s access to the AI Platform, during a Free Trial, Free Tier or a Paid Plan.
b. Accounts. To access the AI Platform in all cases, Licensee must register for an account on a Licensee Site. To access a Paid Plan, Licensee must enter into an Order. The information that Licensee provides to Octai to register an account must be accurate and up-to-date and Licensee will keep it accurate and up-to-date at all times. Licensee is solely responsible for maintaining the confidentiality of its account and any access credentials that Licensee needs to access the account, and Licensee accepts responsibility for all activities that occur under its account.
3. Proprietary Rights
a. Ownership. As between the parties: (i) Licensee solely owns the Licensee Data and Licensee Models, subject to the provisions of Section 3.b.iii; and (ii) Octai solely owns all rights, title and interest (including all Intellectual Property Rights) in and to all: (1) AI Platform Arising IP; and (2) Technology that Octai owns or controls prior to when these AI Platform Terms take effect or on or after that date but independent of these AI Platform Terms (including all data, models, algorithms, software, know-how, trade secrets and other Technology that constitutes or embodies the AI Platform in whole or part) ((1) and (2) collectively, the “Octai IP”). If any ownership rights in or to any aspect of the Octai IP vests in Licensee under any circumstances, then Licensee will, and hereby does, irrevocably and unconditionally assign to Octai all such rights (without any further consideration due to Octai, where the rights granted to Licensee under these AI Platform Terms are agreed to constitute sufficient consideration for such assignment). If any such rights are not assignable under applicable law, then Licensee hereby waives all such rights to the fullest extent permitted under applicable law. Licensee acknowledges that: (A) Licensee’s rights to any Licensee Models are limited to the specific copy presented to Licensee on the AI Platform’s user interface, and Licensee has no rights to any other copies or versions of the Licensee Models; and (B) other AI Platform users may generate models using the AI Platform that are the same as or similar to the Licensee Models under certain circumstances, such as when other AI Platform users provide input that is the same as or similar to the Licensee Data to generate models on the AI Platform. Licensee hereby irrevocably and unconditionally waives all rights to directly or indirectly challenge, or assist any third party in challenging, the rights of Octai or any third party in or to any Octai IP.
i. AI Platform and Incorporated Octai IP.
(1) Octai hereby grants to Licensee during the Term (defined in Section 5(a)) a non-exclusive, non-transferable, non-sublicensable, worldwide and irrevocable (subject to Octai’s right to terminate this Agreement) license to access and use the AI Platform subject to any Usage Caps solely for: (I) in the case of a Paid Plan, Licensee’s internal business purposes to enable its products and services with artificial intelligence capabilities in accordance with these AI Platform Terms; (II) in the case of a Free Trial or access to the Free Tier, Licensee’s internal, non-commercial evaluation purposes to determine whether Licensee desires to seek paid access to the AI Platform in accordance with these AI Platform Terms. If, and only if, Octai incorporates any AI Platform Arising IP into the AI Platform during the Term, then such incorporated AI Platform Arising IP are deemed included in all references to the “AI Platform” in these AI Platform Terms and will be subject to these AI Platform Terms for so long as such AI Platform Arising IP remains so incorporated into the AI Platform.
(2) If, and only if, any Octai IP is incorporated into or embodied by any Licensee Models, then Octai will, and hereby does, grant to Licensee a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use and exploit such incorporated or embodied Octai IP solely as and to the extent so incorporated into or embodied by the Licensee Models; provided, for clarity, the foregoing does not provide Licensee with any rights to use or exploit any such incorporated or embodied Octai IP on a standalone basis or otherwise separate from the Licensee Models into which such Octai IP is incorporated or by which such Octai IP is embodied.
ii. Restrictions. Licensee will not, and will not authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, models, underlying user interface techniques, or algorithms of the AI Platform; (ii) modify the AI Platform, or sell, lease, license or otherwise commercialize or distribute the AI Platform; (iii) interfere with or disrupt the performance of the AI Platform; (iv) gain unauthorized access to the AI Platform or its related systems or networks; (v) use any portion of the AI Platform in connection with or related to any efforts to develop a competitive product or service to those being developed or offered by Octai; (vi) use the AI Platform in a manner that violates any Usage Caps or otherwise in any manner that is not expressly authorized in these AI Platform Terms; (vii) remove, alter, or obscure in any way any proprietary rights notices of Octai or its suppliers on or within the AI Platform; (viii) transmit to the AI Platform any virus, worm, spyware or other software code, file or program intended to impair, alter or damage the operation of the AI Platform or its related systems or networks; and (ix) use the AI Platform in any manner that violates any applicable laws, rules or regulations or infringes any third party Intellectual Property Rights or other rights, including any use that would be libelous or defamatory, or discriminatory based on race, color, sex, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation, age or any other protected class pursuant to U.S. federal or any state laws. During a Free Trial or access to the Free Tier, Licensee will not, and will not authorize any third party to, implement, deploy or otherwise use any Licensee Model in connection with any product or service that is distributed, made available or commercialized in any manner (including on a software-as-a-service or hosted basis) to any third party outside of Licensee’s business.
iii. Licensee Data and Licensee Models.
(1) As between the parties, Licensee retains all right, title and interest (including any and all intellectual property rights) in and to the Licensee Data and any modifications made thereto in the course of using the AI Platform. Subject to the terms of this Agreement, Licensee hereby grants to Octai a non-exclusive, worldwide, royalty-free right, during the term of this Agreement, to process the Licensee Data solely to the extent necessary to provide the services contemplated by the AI Platform, to prevent or address service or technical problems therein, or as may be required by law.
(2) As between the parties, Licensee owns the Licensee Models, but Licensee acknowledges that Octai is in the business of improving and making enhancements to the AI Platform, partially through learnings generated by training Licensee Models. Accordingly, Licensee hereby grants to Octai a non-exclusive, perpetual, irrevocable, transferable, worldwide and royalty-free license to use, reproduce, modify and otherwise exploit the Licensee Models for the following purposes: to operate, train, modify, maintain, support, update, enhance, exploit, and otherwise use and improve the AI Platform, Octai IP and all current or future Octai products, services and technology. Octai has the right to grant and authorize sublicenses (through multiple tiers) to the foregoing licenses in this Section3(b)(iii)(2) in its sole discretion. Octai remains liable for ensuring sublicensees comply with the scope of the licenses in this Section 3(b)(iii)(2).
iv. Feedback. Licensee may provide Octai with feedback about Licensee’s use of and experience with any aspect of the AI Platform or Licensee Models (“Feedback”). Licensee hereby grants to Octai a non-exclusive, perpetual, irrevocable, transferable, worldwide and royalty-free license, with the right to grant and authorize sublicenses (through multiple tiers), to use and exploit such Feedback in any manner without any restriction or any payment or credit due to Licensee.
v. Reservation of Rights. All rights that a party does not expressly grant to the other in these AI Platform Terms are hereby reserved and neither party grants to the other any implied licenses in these AI Platform Terms under any theory.
4. Fees and Payment Terms.
a. Fees. Licensee will pay all fees set forth in each Order in accordance with all payment terms set forth in each Order. All fees due and payable under these AI Platform Terms are referred to as the “Fees.” Licensee authorizes Octai to charge all sums for the Paid Plan that Licensee selects as described in an Order, including all applicable taxes, to the payment method specified in Licensee’s account. If Licensee pays any Fees with a credit card, Octai may seek pre-authorization of Licensee’s credit card account prior to Licensee’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Licensee’s purchase.
b. Taxes. Licensee shall be responsible for the payment of all sales, use, excise, value-added and/or any other taxes, duties, or charges imposed by any federal, state or local governmental or regulatory authority in connection with the Fees, excluding any taxes imposed on Octai’s net income. To the extent required by relevant federal, state or local regulations, Octai shall be entitled to collect and remit any such taxes with each payment of Fees.
5. Term and Termination.
a. Term. These AI Platform Terms will commence on the date when a Free Trial and/or Paid Plan has been initiated by Licensee, and these AI Platform Terms will continue, unless terminated earlier in accordance with these AI Platform Terms (the “Term”). The term of each Order will begin on the date when the Order has been completed by Licensee, and each Order will continue on a monthly basis, unless terminated earlier by either party in accordance with these AI Platform Terms.
b. Termination. Either party may terminate these AI Platform Terms or any Order by written notice: (i) if the other party is in material breach of these AI Platform Terms or such Order, where such material breach is not cured within thirty (30) days after written notice of such breach from the non-breaching party; and (ii) at any time upon written notice to the other for any or no reason; provided that, if Licensee terminates these AI Platform Terms or any Order pursuant to this Section 5(b)(ii), then Licensee will not be entitled to a refund for any Fees that have been paid prior to termination.
c. Effects of Termination. Upon any expiration or termination of the AI Platform Terms: (i) the license granted to Licensee in Section 3(b)(i)(1) will immediately terminate;(ii) Licensee must permanently delete all copies of Octai Confidential Information within Licensee’s possession or control, if any, and certify the same has been completed upon request by Octai; and (iii) the following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive: 1, 2, 3(a), 3(b)(i)(2), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 4, 5(c), 6, 7, 8, 9, and 10.
Licensee agrees that the Octai Confidential Information constitutes and embodies valuable Octai trade secrets. Licensee may use the Octai Confidential Information only as necessary to exercise Licensee’s express rights under these AI Platform Terms and Licensee may not disclose any Octai Confidential Information to any third party without Octai’s prior written consent. Licensee agrees that Licensee will protect the Octai Confidential Information from unauthorized access, use and disclosure in the same manner that Licensee would use to protect Licensee’s own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.
7. Representations and Warranties.
Licensee represents, warrants and covenants that: (a) the Licensee Data and the Licensee Models do not, and Octai’s use of the Licensee Data and Licensee Models as permitted in these AI Platform Terms will not, infringe, misappropriate or violate the Intellectual Property Rights or other rights of any third party or any applicable laws, rules or regulations; (b) Licensee will not use the Licensee Models in violation of any applicable law, rule or regulation, any third party rights or in any manner that could subject Octai to any laws, rules or regulations that otherwise would not apply to Octai; (c) Licensee has, and will continue to have, all necessary rights to grant Octai the rights set forth in these AI Platform Terms; (d) entering into these AI Platform Terms and performing Licensee’s obligations under these AI Platform Terms do not, and will not, breach or otherwise conflict with Licensee’s obligations to any third party under any contract, court order or otherwise; (e) Licensee has had the opportunity to consult with independent legal counsel prior to accepting these AI Platform Terms even if Licensee has chosen not to do so; (f) if Licensee is accessing and using the AI Platform in Licensee’s individual capacity, Licensee is doing so for business purposes and not as a “consumer” as that concept is defined under applicable laws, rules and regulations; and (g) Licensee is not seeking to, and will not, access or use the AI Platform for or on behalf of any agency or instrumentality of any government. LICENSEE FURTHER REPRESENTS, WARRANTS AND COVENANTS THAT IT WILL NOT DEPLOY, IMPLEMENT OR OTHERWISE USE THE LICENSEE MODELS IN CONNECTION WITH ANY PRODUCTS, SERVICES OR APPLICATIONS THAT COULD CONTRIBUTE (IN WHOLE OR PART) TO ANY PHYSICAL OR EMOTIONAL HARM TO ANY PERSON OR ANY DAMAGE TO TANGIBLE PROPERTY (INCLUDING IN CONNECTION WITH ANY PRODUCTS, SERVICES OR APPLICATIONS RELATED TO THE HEALTHCARE, TRANSPORTATION, MILITARY AND/OR LAW ENFORCEMENT AND ENERGY INDUSTRIES).
To the fullest extent permitted by applicable laws, rules and regulations, Licensee will defend, indemnify and hold harmless the Octai Parties (defined in Section 9) and their respective officers, directors, employees, consultants, agents, licensors and suppliers (each, an “Indemnified Party”), from and against any action, claim, investigation or other proceeding brought against an Indemnified Party by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising from or in connection with: (a) Licensee’s use or misuse of the AI Platform; (b) Licensee’s breach of these AI Platform Terms; (c) any Licensee Data (including any allegation that any Licensee Data and/or any use of the same in accordance with these AI Platform Terms infringes or misappropriates any third party’s rights or violates any applicable laws, rules and regulations, rules or regulations); (d) any Licensee Models (including any use, deployment, implementation or other exploitation of Licensee Models in any manner); or (e) any dispute between Licensee and any third party covered by Section 9. The Indemnified Party reserves the right, at Licensee’s sole expense, to assume the exclusive defense and control of any matter covered by this Section 8 (without limiting Licensee’s indemnification obligations with respect to that matter), and in that case, Licensee agrees to cooperate with the Indemnified Party’s defense of those claims.
9. Disclaimers; Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANY OTHER TERMS IN THESE AI PLATFORM TERMS, THE FOLLOWING TERMS APPLY:
Octai DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE, ARISING FROM OR RELATING TO THESE AI PLATFORM TERMS AND THE Octai IP. WITHOUT LIMITING THE FOREGOING:
(1) Octai DOES NOT REPRESENT OR WARRANT THAT: (a) THE AI PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE AI PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE; (c) ANY DATA PROVIDED BY OR THROUGH THE AI PLATFORM (INCLUDING ANY THIRD PARTY CONTENT AND LICENSEE MODELS) WILL BE ACCURATE OR COMPLETE OR FIT FOR ANY PURPOSE OR USE THAT LICENSEE PLANS TO MAKE OF THE SAME; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO LICENSEE DATA OR LICENSEE’S DEVICES OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE AI PLATFORM; AND
(2) NEITHER Octai NOR ANY OF ITS CURRENT OR FUTURE AFFILIATES (collectively, the “Octai Parties”) NOR ANY OF THEIR RESPECTIVE LICENSORS WILL HAVE ANY LIABILITY TO LICENSEE IN CONNECTION WITH ANY: (a) DATA MADE AVAILABLE TO LICENSEE BY OR THROUGH THE AI PLATFORM, INCLUDING LICENSEE MODELS (collectively, “Covered Data”) OR ANY RESULTS OR OUTPUT DERIVED FROM, BASED UPON OR OTHERWISE ARISING FROM OR IN CONNECTION WITH ANY ACCESS TO, REVIEW, PROCESSING, DEPLOYMENT, IMPLEMENTATION OR OTHER USE OR EXPLOITATION OF THE COVERED DATA (collectively, “Results”); OR (b) DISPUTE LICENSEE MAY HAVE WITH ANY THIRD PARTY PERSON OR ENTITY ARISING FROM OR IN CONNECTION WITH THE AI PLATFORM OR ANY COVERED DATA OR RESULTS. ALL SUCH DISPUTES COVERED BY THE FOREGOING CLAUSE (b) ARE BETWEEN LICENSEE AND ANY SUCH THIRD PARTIES. ACCORDINGLY, LICENSEE HEREBY IRREVOCABLY RELEASES THE Octai PARTIES AND ALL OF THEIR LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
IN NO EVENT WILL Octai BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THESE AI PLATFORM TERMS, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF Octai HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AND Octai’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THESE AI PLATFORM TERMS WILL NOT EXCEED THE AMOUNT PAID BY LICENSEE UNDER THE ORDER(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
10. GENERAL PROVISIONS
b. Personal Data. To the extent Licensee uploads any Personal Data (as such term may be defined by relevant data protection laws) to the AI Platform, both parties agree to comply with the terms of the Octai Data Processing Addendum.
c. Modification of these Terms. Octai reserves the right to change these AI Platform Terms on a going-forward basis at any time. Please check these AI Platform Terms periodically for changes. If a change to these AI Platform Terms materially modifies Licensee’s rights or obligations, Octai may require that Licensee accept the modified AI Platform Terms in order to continue to use AI Platform. Material modifications are effective upon Licensee’s acceptance of the modified AI Platform Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 10(b), these AI Platform Terms may be amended only by a written agreement signed by authorized representatives of the parties to these AI Platform Terms. Disputes arising under these AI Platform Terms will be resolved in accordance with the version of these AI Platform Terms that was in effect at the time the dispute arose.
d. Interpretation. Unless a clear contrary intention appears: (i) any term defined in the singular includes the plural when required by the applicable context; (ii) the headings in these AI Platform Terms are for convenience of reference only, will not be deemed to be a part of these AI Platform Terms, and will not be referred to in connection with the interpretation of these AI Platform Terms; and (iii) uses of “including” mean “including, without limitation.” Any ambiguity in these AI Platform Terms will be interpreted without regard to which party drafted these AI Platform Terms or any part thereof.
e. Changes. Octai may make changes or updates to the AI Platform during the Term, including to reflect changes in technology, industry practices and patterns of system use; however, any such changes will not result in a material reduction in the level of performance or availability of the AI Platform provided to Licensee during the Term. If any changes to the AI Platform do result in a material reduction in the level of performance or availability for the AI Platform, then Licensee’s sole remedy in connection with the same is to terminate these AI Platform Terms and to cease all use of the AI Platform.
f. Assignment; Subcontractors. Neither party may assign these AI Platform Terms or any of its rights under these AI Platform Terms without the prior written consent of the other party, except that Octai may assign these AI Platform Terms without the consent of Licensee as part of a corporate reorganization, to any Octai affiliate, or in connection with any change of control, consolidation, merger, sale of assets or any similar transaction or series of transactions. Subject to the foregoing, these AI Platform Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Octai in its sole discretion may from time-to-time engage third parties to perform any of its obligations under these AI Platform Terms, including hosting or other services. Octai will be responsible for ensuring all such parties comply with these AI Platform Terms.
g. Force Majeure. Neither party will be liable for any failure or delay in its performance under these AI Platform Terms due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, pandemic, epidemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet, but in all cases excluding the payment of Fees (each, a “Force Majeure”). The delayed party must give the other party notice of such Force Majeure and use commercially reasonable efforts to correct such failure or delay in performance.
h. Governing Law. These AI Platform Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Commonwealth of Massachusetts, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
a) Any dispute with respect to these AI Platform Terms will be settled by binding arbitration in Suffolk County, Massachusetts, under the Rules of the American Arbitration Association by three arbitrators appointed in accordance with such rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with these AI Platform Terms. LICENSEE UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE AI PLATFORM TERMS, LICENSEE AND Octai ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b) Notwithstanding the foregoing in Section 10(i)(a), Licensee acknowledges and agrees that a breach or threatened breach of these AI Platform Terms would cause Octai irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Octai will be entitled to equitable relief and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
j. Publicity. Octai may use Licensee’s name as a reference for marketing or promotional purposes on Octai’s website and in other communications with existing or potential Octai customers, investors or acquirers, subject to any written trademark policies Licensee may provide Octai in writing, with reasonable advanced notice.
k. Entire Agreement; Order of Precedence. All Orders are incorporated by reference into these AI Platform Terms. In the event of a conflict between the terms of these AI Platform Terms and any Order, the terms in these AI Platform Terms will prevail. These AI Platform Terms, including all Orders, is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Licensee will modify these AI Platform Terms, regardless of any failure of Octai to object to such terms.
l. Third Party Beneficiaries. These AI Platform Terms only benefit the parties and their respective permitted successors and assigns and no third party has any rights arising under these AI Platform Terms, provided that the parties hereby designate Indemnified Parties as third party beneficiaries of Section 8 with the right to enforce such Section 8.
m. Relationship of the parties. The relationship between the parties is that of independent contractors. Nothing contained in these AI Platform Terms will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
n. Waivers; Severability. All waivers of rights arising under these AI Platform Terms must be made in writing by the party waiving rights. If any provision in these AI Platform Terms is held to be unenforceable by a court of competent jurisdiction or the arbitrators (as applicable, based on the dispute resolution proceeding under Section 10(h)), then: (i) it will be severed from these AI Platform Terms; (ii) the court of competent jurisdiction or arbitrators (as applicable) will replace the severed provision with another provision that most closely reflects the parties’ original intent to the fullest extent permitted by applicable law; and (iii) these AI Platform Terms will remain in full force and effect.
o. Export Regulations. Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce Bureau of Industry and Security, in connection with the AI Platform. Specifically, Licensee covenants that Licensee will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Octai under these AI Platform Terms to any destination, entity, or person or for any use prohibited by the export control laws or regulations of the United States, without obtaining prior authorization from the competent government authorities, including the U.S. Department of Commerce, as required by those laws and regulations.
p. OFAC/Economic Sanctions. Licensee agrees to comply with all applicable trade and economic sanctions laws and regulations, including those administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), (“Economic Sanctions Laws”) in connection with the AI Platform. Licensee agrees that Licensee will not provide, directly or indirectly, any service, product, or technology, to any person in a country subject to comprehensive U.S. sanctions (currently Iran, Syria, Cuba, North Korea and the Crimea region of the Ukraine) (“Sanctioned Country”) or to any person listed on or covered by an OFAC or other applicable sanctioned persons list, including but not limited to as OFAC’s Specially Designated Nationals and Blocked Persons List (“Sanctioned Person”). Further, Licensee is not a Sanctioned Person or located, organized, or resident in a Sanctioned Country. Licensee will cooperate with Octai to ensure compliance with the Economic Sanctions Laws and review and remediate actual or potential violations of Economic Sanctions Laws, including suspending or terminating access that may be in violation of the Economic Sanctions Laws.
Contact Information. The AI Platform is offered by Aigoritma Inc., located at ADDRESS. Licensee may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.