These Shopped Terms of Service (these "Terms") are entered as of the Effective Date between the organization agreeing to these terms ("Customer") and Shopped, Inc. ("Provider"). These Terms, together with any Order Form, any Statement of Work, and any purchase or configuration made through the Account Console, are referred to herein, collectively, as this "Agreement". An Order Form or Account Console transaction may govern subscription or recurring Services, and an SOW may govern professional services, implementation, configuration, integration, advisory, or other project-based Services, including the fees, billing terms, milestones, and deliverables applicable to such professional services.
In this Agreement, Provider and Customer are each referred to as a "Party" and collectively as the "Parties." Capitalized terms not defined in these Terms have the meanings given to them in the applicable Order Form, SOW, or Account Console, as applicable to the relevant Services or transaction. Customer represents it is lawfully able to enter into this Agreement and, if it is entering into this Agreement for an entity, that it has legal authority to bind that entity. By clicking "I agree" (or similar), accepting the applicable Order Form or SOW, completing a purchase or configuration through the Account Console, or using the Services, Customer agrees to this Agreement.
Provider will deliver the Services to Customer for the Services Term. The Services Term will be as set forth on the Order Form or as selected by Customer through the Account Console, and will be either monthly or annual. Unless the Parties agree otherwise in writing, increases in the Services purchased during a Services Term will have a prorated term ending concurrently with the then-current Services Term.
Unless otherwise set forth on the applicable Order Form, the Initial Term or Renewal Term, as applicable, will automatically renew for successive Renewal Term(s) of the same duration as the then-current Services Term (i.e., monthly or annually, as applicable), unless either Party provides the other Party with written notice of non-renewal: (i) for annual Services Terms, at least thirty days before the start of the next Renewal Term; or (ii) for monthly Services Terms, before the start of the next Renewal Term. Customer may change between monthly and annual Services Terms effective as of the next Renewal Term by updating the applicable selection through the Account Console. If Customer reduces any entitlements or Services in an Order Form, Provider may adjust or remove discounts offered to Customer based on its prior purchase.
If Customer purchases Services based on usage, Customer acknowledges that Provider will charge Customer the Fees for the Services based on the usage calculated by Provider.
This Agreement governs Customer's access to and use of the Services. Customer may access and use the Services in accordance with this Agreement.
Provider grants Customer a non-exclusive right to access and use the Services during the Term. This includes the right to use Provider's API to integrate the Services into Customer Applications and to make Customer Applications available to Customer End Users during the Term.
Provider may update the Services periodically. If a Provider update materially reduces the Services functionality, Provider will notify Customer at the Account email address. Within five business days of receipt of this notice, Customer may choose to terminate these Terms by providing no less than thirty days' written notice. This termination right will not apply to updates made to features provided on a beta or evaluation basis.
Customer must provide accurate and current Account information. Customer will not share Account access credentials or individual login credentials between multiple users. Customer may not resell or lease access to its Account or any User Account. Customer will promptly notify Provider if it becomes aware of unauthorized access to the Account or the Services.
User Accounts may only be provisioned to, registered for, and used by, a single User. Customer is responsible for all activities that occur under its Account, including the activities of Users with an User Account or who access the Services through a Customer Application. Customer will obtain and maintain from Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Provider to deliver the Services.
Customer will not, and will not permit Users or Customer End Users to: (a) use the Services or Customer Content in a way that violates applicable laws or this Agreement; (b) use the Services or Customer Content in a way that violates third parties' rights; (c) allow minors to use Provider Services without consent from their parent or guardian; (d) Reverse Engineer any aspect of the Services or the systems used to provide the Services; (e) except for a Permitted Exception, use Output to develop artificial intelligence models that compete with Provider's products and services; (f) extract data from the Services other than as permitted through the Services; (g) buy, sell, or transfer API keys from, to, or with a third party; (h) interfere with or disrupt the Services, including circumvent any rate limits or restrictions or bypass any protective measures or safety mitigations for the Services; (i) violate or circumvent Usage Limits or otherwise configure the Services to avoid Usage Limits.
Third-Party Services may be available through the Services, which Customer may elect to use in its sole discretion. By accessing a Third-Party Service, Customer agrees to the applicable Third-Party Service Terms. Customer's access or use of Third-Party Services are governed by this Agreement and the relevant Third-Party Service Terms.
Customer acknowledges that the Services integrate with multiple non-public third-party data sources. Customer represents and warrants that: (a) it has obtained all necessary rights and permissions to access and use third-party data through the Services; (b) its use of third-party data complies with all applicable terms of service and data use policies of such third parties; and (c) it will not use the Services to access third-party data in violation of any platform's terms or applicable law. Provider makes no representations regarding the accuracy, completeness, or availability of third-party data sources. Customer acknowledges that third-party platforms may change their APIs, terms, or data availability at any time, and Provider shall have no liability for any resulting service interruptions or data unavailability.
Customer, Users, and Customer End Users may provide Input and receive Output. As between Customer and Provider, to the extent permitted by applicable law, Customer: (a) retains all ownership rights in Input; and (b) owns all Output. Provider hereby assigns to Customer all of Provider's right, title, and interest, if any, in and to Output.
Provider will use Customer Content only as necessary to provide Customer with the Services, comply with applicable law, exercise its rights under this Agreement, prevent abuse, and maintain and improve the Services.
Customer is responsible for all Input and represents and warrants that it has all rights, licenses, and permissions required for Customer to provide the Services.
Due to the nature of Provider's Services and artificial intelligence generally, Output may not be unique, and other users may receive similar content from Provider's services. Responses that are requested by and generated for users other than Customer, Users, or Customer End Users are not considered Customer's Output.
Our Services may provide incomplete, incorrect, or offensive Output that does not represent Provider's views. If Output references any third-party products or services, it doesn't mean the third party endorses, is endorsed by, or is affiliated with Provider.
All Usage Data is owned solely and exclusively by Provider, and, to the extent any ownership rights in or to Usage Data vest in Customer or in any User(s), Customer hereby assigns to Provider, on behalf of Customer and any such User(s), all rights, title, and interest in and to the same. Accordingly, Provider may use the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Service; (b) to develop and improve the Service; (c) to monitor your (including any Users') usage of the Service; (d) for research and analytics and for Provider's other business purposes; and (e) to share analytics and other derived Usage Data with third parties, solely in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service. Customer acknowledges and agrees that Provider may use these and other lawful measures to verify Customer's compliance with these Terms and to enforce Provider's rights, including all IP Rights, in and to the Service.
Customer shall: (a) ensure that Customer End Users are informed when they are interacting with AI-generated content or autonomous agents; (b) cooperate with Provider to implement controls to ensure autonomous content generation aligns with Customer's brand guidelines and does not create content that could harm Customer's reputation; (c) establish mechanisms to warn of and remediate failures of such system, as appropriate and provide override capabilities for autonomous decisions; (d) establish feedback channels for Customer End Users to report issues with AI-generated content; and (f) cooperate with Provider on regular testing of autonomous content generation to identify and mitigate undesirable behaviors.
Provider will implement administrative, technical, and physical security safeguards designed to prevent unauthorized access to the Services.
Customer agrees not to use the Services to create, receive, maintain, transmit, or otherwise process Protected Health Information. IF CUSTOMER USES A SERVICE THAT IS NOT DESIGNED FOR PROCESSING PROTECTED HEALTH INFORMATION, CUSTOMER MAY NOT USE THE SERVICES TO STORE, TRANSMIT, OR PROCESS THIS INFORMATION.
Customer will pay Provider or Customer's reseller the applicable Fees in in accordance with the Order Form, SOW, or Account Console. . Fees for self-serve subscriptions purchased through the Account Console are due in advance of each Billing Period. Fees for subscription or other Services purchased under an Order Form, and fees for professional services purchased under an SOW, are due as set forth in the applicable Order Form or SOW. Fees are non-refundable except as required by law or as otherwise specifically permitted in these Terms. If Customer's Order Form includes a minimum commitment, the minimum commitment amount is non-cancellable except as required by law or as otherwise specifically permitted in these Terms.
Customer will pay Fees specified in the applicable Order Form, SOW, or Account Console by credit card, ACH, wire transfer, invoice, or other agreed payment method. For self-serve purchases made through the Account Console, Customer authorizes Provider to charge the payment method associated with Customer's account for all applicable Fees. For invoiced amounts, Customer will pay invoices in accordance with the payment terms stated in the applicable Order Form or SOW. Provider may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Provider.
Fees are exclusive of taxes, which Provider, or Customer's reseller, will charge as required by applicable law in connection with the Services. Provider, or Customer's reseller, will use the name and address in the Account as the place of supply for tax purposes. All Fees under this Agreement shall be paid in full, without any deduction or withholding for taxes, levies, duties, tariffs, or other charges of any nature imposed by any governmental authority. If any such deduction or withholding is required by law, Customer shall increase the payment to Provider, or to Customer's reseller, so that the net amount received equals the amount invoiced.
To dispute an invoice, Customer must: (a) contact legal@shopped.com within thirty days of the date the disputed invoice was issued; and (b) pay all undisputed amounts. Overdue undisputed amounts may be subject to a finance charge of 1.5% of the unpaid balance per month.
Recipient agrees it will: (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.
The obligations in Section 7.1 do not apply to 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 developed independently without use of Discloser's Confidential Information.
Recipient may disclose Confidential Information only to its Affiliates, employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations at least as restrictive as those in this Agreement. Recipient will be responsible for any breach of this Section 7 by its employees, contractors, and agents. Recipient may disclose Confidential Information to the extent required by applicable law, if Recipient uses reasonable efforts to notify Discloser, to the extent permitted, prior to doing so.
Recipient acknowledges that a disclosure of Confidential Information in violation of these terms would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by Recipient, Discloser will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
If a User: (a) violates this Agreement; or (b) causes, or will cause, a Security Emergency, then Provider may request that Customer suspend or terminate the relevant User Account. If Customer fails to promptly suspend or terminate the User Account, then Provider may do so.
Provider may limit or suspend Customer's access to the Services if: (a) it is required to do so by law; (b) Customer violates this Agreement; or (c) doing so is necessary to prevent or terminate a Security Emergency. Provider will use reasonable efforts to notify Customer before limiting or suspending access to the Services pursuant to the preceding sentence, but may do so without prior notice to the extent reasonably necessary. Provider will use reasonable efforts: (i) to narrowly tailor a limitation or suspension to prevent or terminate the Security Emergency; and (ii) to cooperate with Customer to promptly restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.
Provider may immediately suspend autonomous content generation features if: (a) the Services generate content that violates applicable law, Customer's brand guidelines, or this Agreement; (b) third-party data sources provide harmful or prohibited content; or (c) autonomous systems exhibit unexpected behavior that could harm Customer's business or reputation. Provider will use reasonable efforts to notify Customer and restore service once the issue is resolved.
Except as expressly set forth herein, this Agreement does not grant: (a) Provider any IP Rights in Customer Content; or (b) Customer any IP Rights in the Services. Customer obtains only a limited right to use the Services, and no ownership rights are transferred to Customer, Users, or Customer End Users under this Agreement.
The limited rights that that Customer grants to Provider under this Agreement extends to Provider's subcontractors or sub-processors.
If Customer provides Feedback, Customer grants Provider the right to use and exploit Feedback without restriction or compensation.
Provider shall have the right to identify Customer as a customer of Provider, and to use and to display Customer's name and logo, in Provider's general marketing and reporting materials (such use to be in accordance with Customer's brand guidelines, if Customer provides such guidelines to Provider in writing).
This Agreement will remain in effect for the Term.
Either Party may terminate this Agreement, including all Order Forms, upon written notice, if the other party: (a) materially breaches this Agreement and fails to cure the breach within thirty days after receipt of written notice; or (b) ceases its business operations or becomes subject to insolvency proceedings.
If this Agreement terminates: (a) the rights granted by Provider to Customer will cease immediately; and (b) Provider will delete all Customer Content from its systems within thirty days, unless: (i) Provider is legally required to retain it; or (ii) Customer has agreed otherwise in writing. Termination or expiration will not affect any rights or obligations, including the payment of amounts due, which have accrued under this Agreement up to the effective date of termination. In addition, except for a termination by Customer for cause, if this Agreement terminates or expires, any unpaid minimum commitment amounts set forth on the Order form will become immediately due. Despite anything to the contrary in this Agreement, Provider may retain Abusive Customer Content, or, if Customer's access to the Services is suspended via Section 8 or terminated via Section 11, share information related to Abusive Customer Content, as required by law, or as reasonably necessary to protect the Services or any third party from harm.
The following provisions will survive termination or expiration of these Terms: 4.6 (Usage Data), 6.2 (Payment), 7 (Confidentiality), 9 (IP Rights), 11.3 (Effects of Termination), 11.4 (Survival), 12 (Warranties; Disclaimers), 13 (Indemnification), 14 (Limitation of Liability), 16 (Miscellaneous).
Provider warrants that, during the Term, when used in accordance with this Agreement, the Services will conform in all material respects with the Documentation.
SUBJECT TO SECTION 12.1, THE SERVICES ARE PROVIDED "AS IS." TO THE EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PROVIDER AND ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. PROVIDER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER CONTENT WILL BE ACCURATE, THAT DEFECTS WILL BE CORRECTED, OR REGARDING ANY THIRD-PARTY SERVICES. PROVIDER WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY CUSTOMER CONTENT, THIRD-PARTY SERVICES, THIRD-PARTY CONTENT, OR NON-PROVIDER SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, OR ANY OTHER PROBLEMS CAUSED BY THESE ITEMS). PROVIDER MAKES NO WARRANTY REGARDING THE ACCURACY, APPROPRIATENESS, OR BRAND ALIGNMENT OF AUTONOMOUSLY-GENERATED CONTENT. PROVIDER DISCLAIMS ALL WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THIRD-PARTY DATA SOURCES, INCLUDING SOCIAL MEDIA PLATFORMS, REVIEW SITES, AND PUBLIC CONTENT REPOSITORIES.
Despite anything to the contrary in this Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security testing and auditing as the Services; and (e) PROVIDER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES – USE AT YOUR OWN RISK.
Provider agrees to indemnify, defend, and hold Customer harmless against any liabilities, damages, and costs (including reasonable attorneys' fees) payable to a third party arising out of a Claim alleging that the Services infringe any third-party IP Right. This excludes claims to the extent arising from: (a) combination of any Services with products, services, or software not provided by Provider or on Provider's behalf; (b) modification of any Services by any party other than Provider; (c) Customer Content; or (d) Customer Applications (if any and the claim would not have arisen but for the Customer Application).
Customer agrees to indemnify, defend, and hold Provider and its affiliates and licensors harmless against any liabilities, damages, and costs (including reasonable attorneys' fees) payable to a third party arising out of a Claim related to: (a) use of the Services in violation of this Agreement; (b) Customer Applications, if any; or (c) Customer Content.
If Provider reasonably believes that all or any portion of the Services is likely to become the subject of an infringement Claim, Provider will: (a) obtain, at Provider's expense, the right for Customer to continue using the Services in accordance with this Agreement; (b) replace or modify the allegedly-infringing Service; or (c) if (a) and (b) are not commercially practicable, Provider may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund any prepaid amounts for unused Services. Customer will promptly comply with all reasonable instructions provided by Provider with respect to the above, including any instruction to replace, modify, or cease use of the Service.
A party seeking indemnity will: (a) provide the indemnifying party with prompt written notice upon becoming aware of any claim; (b) provide the indemnifying party with reasonable cooperation in the defense of or investigation of the claim; and (c) and allow the indemnifying party sole control of defense and settlement of the claim including selection of counsel, provided that the party seeking indemnity is entitled to participate in its own defense at its sole expense. The indemnifying party may not enter any settlement or compromise of any claim without prior written consent of the other party, which will not be unreasonably withheld, except that the indemnifying party may without consent enter any settlement of a claim that resolves the claim without liability to the other party, impairment to any of the other party's rights, or requiring the other party to make any admission of liability. THE INDEMNITIES ARE A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S IP RIGHTS.
TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER CUSTOMER NOR PROVIDER NOR EITHER PARTY'S AFFILIATES OR LICENSORS WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOSS OF DATA, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR: EACH PARTY'S TOTAL LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT CUSTOMER PAID TO PROVIDER DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Customer and Provider agree to resolve any Disputes, regardless of when they arose, even if they arose before this Agreement existed, through final and binding arbitration.
Provider wants to understand and address Customer concerns prior to formal legal action. The Parties agree to try to resolve Disputes informally before filing a claim against one another. Customer will do so by contacting Customer's main point of contact at Provider. Provider will do so by notifying Customer at the Account email address. If the Parties cannot resolve a Dispute within sixty days, either Party may initiate arbitration. Both Parties also agree to attend an individual settlement conference if either Party requests one during this time. Any statute of limitations will be tolled during this informal resolution process.
Customer and Provider agree to resolve any Disputes through final and binding arbitration, except as set forth below. Either Party may commence binding arbitration through NAM, or, if NAM is not available, an alternative arbitral forum selected by the Parties. The initiating Party will pay all filing fees for the arbitration and payment for other administrative and arbitrator's costs will be governed by the arbitration provider's rules. If a Party's claim is determined to be frivolous, the Party who initiated the frivolous claim is responsible for reimbursing the other Party for all administrative, hearing, and other fees incurred as a result of the frivolous claim.
The arbitration will be conducted by telephone, based on written submissions, video conference, or in person in Boston, Massachusetts or at another mutually agreed location. The arbitration will be conducted by a sole arbitrator by NAM under its then-prevailing rules. All issues are for the arbitrator to decide, except a Massachusetts court has the authority to determine: (a) if a provision of this arbitration section should be severed and the consequences of that severance; (b) whether the Parties have complied with conditions precedent to arbitration; and (c) whether an arbitration provider is available to hear the arbitration. The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.
Nothing in this Agreement requires arbitration of the following claims: (a) individual claims brought in small claims court; and (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement.
Disputes must be brought on an individual basis only and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a Dispute proceeds in court rather than through arbitration, each Party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either Party from participating in a class-wide settlement of claims.
If any part of this Section 15 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this Section 15 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of that claim from the arbitrator.
This Agreement is the entire agreement between Customer and Provider with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications, and understandings, whether written or oral. This Agreement hereby incorporates by this reference the relevant Order Forms. Customer agrees that any terms and conditions contained in any purchase order that Customer sends to Provider will not apply to this Agreement and are null and void.
If there is a conflict between or among the documents that make up this Agreement, the documents will control in the following order: (a) the applicable Order Form, solely with respect to subscription, recurring, platform, and other commercial terms expressly addressed in the Order Form; (b)the applicable SOW, solely with respect to the professional services, deliverables, milestones, assumptions, dependencies, acceptance criteria, and any professional services fees, billing terms, or payment terms expressly addressed in the SOW; (c) these Terms. If an Order Form and an SOW both address the same subject matter, the Order Form will control, except that the SOW will control with respect to professional services scope and any professional services fees or billing terms expressly set forth in the SOW.
This Agreement will be governed by the Governing Laws. Without prejudice to Section 15, all claims arising out of or relating to this Agreement will be brought exclusively in the Venue.
Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of these Terms will remain in full effect.
Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Account email address and are deemed given when sent. Notices to Provider must be sent to Provider Legal at legal@shopped.com, with a copy to: info@rightarrowlegal.com.
A waiver of any default is not a waiver of any subsequent default.
This Agreement cannot be assigned other than as permitted under this Section 16.7 (Assignment). Provider may assign this Agreement to an Affiliate without notice or Customer consent. Either Party may assign this Agreement to a successor to substantially all of the respective party's assets or business, provided the assigning party provides at least thirty days prior written notice of the assignment. This Agreement will be binding upon the parties and their respective successors and permitted assigns.
Provider and Customer are not legal partners or agents but are independent contractors.
Except for payment obligations, neither Customer nor Provider will have any liability for failures or delays resulting from conditions beyond Customer's or Provider's reasonable control, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, or power failures.
There are no intended third-party beneficiaries to this Agreement, and it is Customer and Provider's specific intent that nothing contained in this Agreement will give rise to any right or cause of action, contractual or otherwise, in or on behalf of any third party.
Customer is solely responsible for ensuring that its use of the Services complies with applicable trade laws, including sanctions and export control laws. Customer's (including any User's or Customer End User's) Input may not include material or information that requires a government license for release or export. Customer may not use the Services in or for the benefit of, or export or re-export the Services to, any U.S. embargoed countries or to anyone on a Restricted Party List. Customer represents and warrants that Customer, its Users, and Customer End Users are not located in any U.S. embargoed countries, are not identified on any Restricted Party List, and that Customer will comply with applicable export control laws, including any "know your customer" requirements or obligations applicable to Customer End Users.
"Abusive Customer Content"
means Inputs or Outputs that violate Section 3.3.
"Account"
means an administrative account provided to Customer by Provider for the purpose of administering the Services.
"Administrator"
means a Customer-designated User with administrative privileges.
"Account Console"
means the online tool provided by Provider to Customer for use in administering the Services.
"Affiliate"
means with respect to either Party, any other person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, that Party.
"API"
means Provider's application programming interface.
"Beta Services"
means services or features identified as alpha, beta, trial, preview, early access, or evaluation, or words or phrases with similar meanings.
"Billing Period"
means each recurring period (monthly or annually, as applicable) for which Fees are charged in advance, corresponding to Customer's selected Services Term.
"Confidential Information"
means any business, technical, or financial information, materials, or other subject matter disclosed by Discloser to Recipient that is: (a) identified as confidential at the time of disclosure; or (b) should be reasonably understood by Recipient to be confidential under the circumstances. Confidential Information of Customer excludes Customer Content.
"Claim"
means legal proceedings filed by a third party.
"Customer Application"
means Customer's applications, websites, products, or services that integrate with an API of Provider.
"Customer Content"
means the Input and the Output.
"Customer End User"
means any party who uses Customer Applications.
"Discloser"
means the Party that discloses Confidential Information to the other Party under this Agreement.
"Dispute"
means a claim by a Party arising out of or relating to this Agreement or the Services.
"Documentation"
means the documentation Provider provides to Customer or otherwise makes available publicly.
"Effective Date"
means the date this Agreement is entered into by the Parties, either by acceptance online, by signing an Order Form referencing these Terms, or by signing these Terms themselves.
"Feedback"
means any feedback provided by Customer to Provider regarding the Services.
"Fees"
means all fees charged to Customer's Account in accordance with an Order Form or as set forth in the Account Console.
"Governing Laws"
means: (a) for Customers in the EEA, Switzerland, or UK, the laws of Ireland; and (b) for all other Customers, the laws of the Commonwealth of Massachusetts, excluding Massachusetts' conflicts of law rules or principles.
"Initial Term"
means the initial term for the Services beginning on the Start Date and continuing for the duration set forth on the Order Form or as selected by Customer through the Account Console (either one month or one year, as applicable).
"Input"
means Customer's, Users', and Customer End Users' input to the Services.
"IP Rights"
means all registered or unregistered intellectual property rights throughout the world, including rights in patents, copyrights, trademarks, trade secrets, designs, databases, domain names, and moral rights.
"NAM"
means National Arbitration and Mediation.
"Order Form"
means: (a) when purchasing from Provider, the ordering document signed by Customer and Provider, Provider's webpage, or the Account Console that Customer uses to purchase or configure the subscription, recurring, or platform-based Services; or (b) when purchasing from a reseller, the ordering document signed by Customer and its reseller or reseller's webpage Customer uses to purchase the Services.
"Output"
means output from the Services based on the Input.
"Permitted Exception"
means Customer using Output: (a) to develop artificial intelligence models primarily intended to categorize, classify, or organize data (e.g., embeddings or classifiers), if these models are not distributed or made commercially available to third parties; or (b) to fine tune or customize models provided as part of Provider's fine-tuning or other similar Services.
"Protected Health Information"
is as defined under the HIPAA Privacy Rule (45 C.F.R. Section 160.103).
"Recipient"
means the Party receiving Confidential Information from the Discloser.
"Renewal Term"
means a renewal term for the Services following either the Initial Term, or a previous Renewal Term. Unless Customer changes its Services Term selection through the Account Console, the duration of each Renewal Term will be the same duration as the immediately preceding Initial Term or Renewal Term.
"Restricted Party List"
means the U.S. Office of Foreign Assets Control's ("OFAC") list of Specially Designated Nationals (aka the "SDN List"), the U.S. Bureau of Industry and Security's ("BIS") Denied Persons List and Entity List, and any other applicable restricted party lists promulgated by OFAC, BIS, or other agencies of comparable jurisdiction, inside or outside the United States, now or in the future.
"Reverse Engineer"
means reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks, or otherwise attempt to discover the source code or underlying components of the Services, algorithms, and systems of the Services (except to the extent these restrictions are contrary to applicable law).
"Security Emergency"
means use of the Services by Customer, a User, or a Customer End User that could reasonably result in a security risk, credible risk of harm, infringement of third-party rights, or liability to Provider, the Services, or a third party.
"Services"
means Provider's services for businesses, enterprises, or developers made available for purchase or use in Customer's Account, along with any of Provider's associated software, tools, developer services, documentation, and websites, but excluding any Third-Party Service.
"Services Term"
means the Initial Term and all Renewal Terms.
"Start Date"
means the date an Initial Term, or Renewal Term, begins. Start Dates are listed on the Order Form or determined by the date Customer activates the Services through the Account Console.
"Statement of Work" or "SOW"
means a document executed by the Parties that describes professional services, implementation services, integration services, advisory services, project-based services, or other scoped services, and may include the applicable fees, billing terms, milestones, assumptions, dependencies, deliverables, acceptance criteria, expenses, and change order procedures for such services.
"Term"
means the term length of these Terms, which will begin on the Effective Date and continue until the earlier of: (i) the end of the Services Term; or (ii) termination of these Terms as set forth herein.
"Third-Party Services"
means products, services, or content offered by parties other than Provider through the Services.
"Third-Party Service Terms"
means any additional terms applicable to the Third-Party Service.
"Usage Data"
means any diagnostic, technical, usage, activity, and related information, including information about Customer's, Users', and Customer End Users' computers, mobile devices, browsers, browser events, networks, systems, and software that Provider may collect, maintain, process, and use, or that Customer may provide to Provider.
"Usage Limits"
means User and any other limits on Customer's use of the Services as described in the applicable Order Form or Documentation.
"User"
means any party: (a) who accesses the Services under Customer's Account. Users may include Customer's and its Affiliates' employees, consultants, customers, agents, representatives, students, or any other person authorized by Customer to use the Services through Customer's Account.
"User Account"
means an account for a User under Customer's Account.
"Venue"
means: (a) for Customers in the EEA, Switzerland, or UK, the courts of Dublin, Ireland; and (b) for all other Customers, federal or state courts located in Boston, Massachusetts.