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1. Acceptance of Terms
1.1 The Services and the Software are provided, operated and owned by Pinkfish AI, Corp. ("us", "we" and "our").
1.2 By signing these Terms of Service, clicking “Agree” or “Accept” or otherwise affirmatively accepting these Terms of Service, you agree to be legally bound by the provisions of this Resellers Terms of Service (“ToS”).
1.3 “You” throughout these ToS means you as an individual user of the Software. However, if you are using the Software on behalf of an entity or organization (or in the course of your employment with such an entity), then you warrant that you are authorized by the said entity to enter into legal agreements on the entity’s behalf, and then both you and the entity enter into this agreement and are liable for your strict compliance with its terms. All users signing up on behalf of or under an entity or organization must sign up using their official email ID. The entity guarantees the compliance of all of its employees, officers, agents, contractors and other related persons.
1.4 Your use of the Software is conditional to you being legally capable (including, without limitation, being of sufficient age) to enter into binding contracts under the applicable law.
1.5 This ToS contains terms and conditions that govern your access to, and the use of Software and Services, and is deemed incorporated by reference into the sublicense agreement between Customer and Reseller pursuant to which you have subscribed to the Service from a Reseller . Resellers may only grant rights, and must pass through conditions, consistent with these ToS. Thus, even though your sublicense agreement is between you and the Reseller, by installing or using the Software, you acknowledge and agree that:
2. Definitions
2.1 Unless the context expressly provides otherwise, in these ToS:
“Acceptable Use Policy” means our Acceptable Use Policy which is incorporated into the ToS by reference and shall be binding on you.
“Commencement Date” means Commencement Date set out in the Commercial Terms, or if unspecified, the Effective Date.
“Commercial Terms” means the terms as stated in Section 1.6 above on which the Services and Software have been subscribed to by you from through the Reseller.
“Customer Data” means any content of whatever nature inputted by you to the Software including but not limited to files, designs, models, images, media, or other similar material or information.
“Documentation” means the documentation for the Software produced by our Reseller and delivered or made available by Reseller to you.
“ToS” means these Terms of Service, including any amendments to the Terms of Service from time to time.
“Fees” means the fees payable by you to the Reseller in exchange for the Service.
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or not, registered or unregistered, including any application or right of application for such rights and these intellectual property rights include copyright and related rights, database rights, confidential information, proprietary rights, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs.
“Reseller” means an authorized reseller appointed by us for selling the subscription to the Software to its end-users and the entity that has contracted directly with you for the sale of a subscription to the Services and the Software;
“Sensitive Personal Data” means (i) patient, medical, or other protected health information, including those regulated by Health Insurance Portability and Accountability Act, as amended, (“HIPAA”); (ii) bank account or other financial details; (iii) social security numbers, driving license numbers, or other government ID numbers; and (iv) special categories of personal data enlisted in the European Union General Data Protection Regulations (“GDPR”).
“Services” means the cloud-based service under which the Software is made available for your use under these ToS.
“Software” means the post-training software for AI including safety and reliability judge models, synthetic data generation and fine tuning, and related data media and Documentation, as titled in the Commercial Terms, that you may use in accordance with the terms of these ToS.
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software.
“Term” means the term during which the Software and the Services will be provided by us to you as stated under the Commercial Terms (the “Initial Term”, and any renewal thereof, each, a “Renewal Term”), as applicable.
“Third Party Services” means the third-party platforms, connection, site, application, software, or integration that interoperates with the Service.
“We”, “us” and “our” means Pinkfish AI, Corp. and its related entities or body corporates.
“You” means you and/or any user of the Software/Services who has entered into a sublicense agreement with the Reseller to purchase subscriptions to use our Software and Services, and includes any entity which you are employed, affiliated or contracted with, and any other employee, officer, agent, contractor or advisor of that entity.
3. Amendment of ToS
3.1 We may amend these ToS from time to time by providing you with adequate notice. If you do not agree to the amendments, then we may at our sole discretion terminate the ToS (in which case you will only be liable for the Fees pro-rata) or abandon the proposed amendment.
4. Term
4.1 This ToS comes into force upon the Commencement Date and will operate for the Term unless terminated in accordance with Section 14. Unless otherwise provided in the applicable Commercial Terms: (a) Services are purchased as subscriptions for each authorized user for the Term, (b) subscriptions for Services for additional authorized users may be added during the Term (and shall be subject to the terms of this Agreement) by placing an order through Reseller, prorated for the portion of that Term remaining at the time the subscriptions are added, (c) any added subscriptions will be co-terminus with the existing subscriptions, and (d) any automatic renewal will include all authorized users added prior to the end of the Initial Term or Renewal Term (as applicable).
5. Registration
5.1 You will be required to register an account with us using your email ID to access the Software and the Services.
5.2 When you register and activate your account, you will provide us with personal information such as name, email address, the name of the legal entity you are representing and other details. You must ensure that this information is accurate and current. We will collect and process all personal information in accordance with Section 9, our Data Protection Agreement (DPA), and our Privacy Policy.
5.3 You will create a username and password. You are responsible for keeping the username and password secure and are responsible for all use and activity carried out under this username. You must not share your account credentials with any third party. We do not authorize anyone to use the Service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorized activity that takes place under your account. On registration, we may also ask for any other information which we may deem reasonably necessary to enable you to enjoy the benefits of the Software and the Services.
5.4 If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Software. You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your account may be suspended, and legal action may be taken against you.
5.5 You agree not to create an account or use the Software if you have been previously removed or suspended by us from the use of the Services.
6. Software License
6.1 Grant of License: Subject to the terms and conditions of this Agreement and the applicable Commercial Terms, the Reseller hereby grant to you from the Commencement Date until the end of the Term a limited, revocable, non-exclusive, non-transferable, non-sub licensable right to access and use the Software for availing the Services in accordance with the Documentation supplied by us or the Reseller solely for your internal business purposes and subject to any limits in the Commercial Terms. All rights in the Software and Services that are not expressly granted under this ToS are reserved with us. You shall not provide access to our Software and Services to any third party without our prior written consent. We are not responsible for any acts, omissions, or other products and services provided by the Reseller.
6.2 Free Trial License: If the Reseller has granted you a subscription of Services on a free trial basis for evaluation purposes, you shall only have the limited and revocable license to use the Services for determining the feasibility of the Services in relation to your internal business operations and you shall solely test the Services in a non-production and evaluation environment (the "Free Trial"). Unless otherwise specified at the time of signing up, the Free Trial shall commence on the date of execution of these ToS and shall continue to be valid for a maximum period of 90 days ("Free Trial Period"). You are solely responsible for determining whether the Services are suitable, secure, and reliable for its evaluation purposes. NOTWITHSTANDING ANYTHING CONTRARY CONTAINED HEREIN, ANY SERVICE PROVIDED DURING A FREE TRIAL PERIOD IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR INDEMNITIES.
6.3 Restrictions: Save to the extent expressly permitted by this ToS or required by applicable law, any license granted under this Section 6 shall be subject to the prohibitions and conditions set out under the Acceptable Use Policy.
6.4 Security: You are strictly responsible for the security of copies of the Software or license keys supplied to you under these ToS (or created from such copies) and must ensure that access to such copies is restricted to persons authorized to use them under these ToS. We do not authorize anyone to use the Software on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorized activity.
6.5 Source Code: Nothing in these ToS shall give to you or any other person any right to access or use the Source Code or constitute any license of the Source Code. You undertake not to do it and not to reverse engineer the Source Code or the Software.
6.6 Breach: Any attempt to breach any of the terms of this Section 6 will be in gross violation of our rights and shall constitute a material breach of these ToS by you.
7. Your Obligations
7.1 You are responsible for the use of the Software only for lawful purposes; and in accordance with the Acceptable Use Policy, the ToS, the Documentation and the Commercial Terms.
7.2 You agree not to access, copy, or otherwise use the Software or the Services including our intellectual property and trademarks, except as authorized by these ToS or as otherwise authorized in writing by us.
7.3 You are responsible for ensuring you have all equipment, facilities and services (including internet access) required to enable you to access and use the Software and Services.
7.4 You acknowledge and agree that the provision of the Services depends on your timely provision of cooperation and certain information, including Customer Data. You will use best efforts to provide such cooperation, information, and infrastructure as reasonably requested by us for operating the Software, and we shall not be responsible for any delay or impact on the Services to the extent caused by your failure to do so.
7.5 You shall be required to accept the Resellers terms of service, and such terms constitute a binding agreement between you and the Reseller only. We make no representations, endorsements, guarantees, or warranties, express or implied, with respect to any such Resellers terms of service. We are not responsible for provision of any services purchased from the Reseller, that is outside the scope of this ToS.
7.6 When using the Software and the Services, you agree that:
7.7 We shall not be responsible for any delay or impact on the Services to the extent caused by your failure towards compliance with your obligations.
7.8 We shall have the right to inspect your records, either directly or through our Reseller, in order to verify your compliance with the obligations and restrictions under these ToS, including inspecting the console and ensuring it is at or below the licensed user count. You shall promptly pay the difference if such verification reveals an underpayment.
8. Fees
8.1 Applicability: You must pay the Fees stated in the Commercial Terms to the Reseller. In case of free subscription, this section will not apply. The amount paid or payable by Reseller for your access to and use of the Services and the Software will be deemed the amount paid or payable by you under these ToS for the purpose of Section 16 (Limitation of Liability and Disclaimers).
8.2 Payment Terms: You must pay the Fees to the Reseller, in accordance with the Commercial Terms and these ToS. All fees paid to the Reseller are non-refundable and not subject to any set-off. There are no refunds or credits for partially used Terms or periods. Suspension or termination of the Services shall not relieve customer of any payment obligations accrued until the date of suspension or termination.
8.3 Overuse of Services: If you exceed the usage limits accorded to you as entailed in the Commercial Terms, you shall be subjected to pay the Fees, applicable for such excess usage, solely determined by us in accordance with our subscription plans.
9. Customer Data
9.1 Rights to Customer Data: You shall retain all right, title and interest in and to the Customer Data, including all Intellectual Property Rights therein. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Any changes to the Customer Data must be notified to us, immediately.
9.2 Limited License: You hereby grant us a limited license to copy, transmit, store, process and back-up or otherwise access the Customer Data during the Term solely to:
9.3 Security: You shall share any Customer Data in accordance with these ToS in the most suitable and secured means. We shall use all commercially reasonable efforts compliant with industry standards to maintain the security and integrity of the Service and the Customer Data received from you in accordance with the terms of Section 15 below. We are not responsible for unauthorized access to Customer Data or the unauthorized use of the Service caused by any act or omission on your behalf. You are responsible for the use of the Service by any person to whom you have given access to the Service, even if you did not authorize such use.
9.4 Warranty: You hereby represent and warrant that:
9.5 Sensitive Personal Data: In consonance with the terms of these ToS and the Acceptable Use Policy, you shall not share or transmit any Sensitive Personal Data to the Software unless specifically agreed with us. We shall have no liability under these ToS for any violation of Sensitive Personal Data.
9.6 Deletion: You agree and acknowledge that Customer Data may be irretrievably deleted after the termination of these ToS.
9.7 Injunctive Relief: You acknowledge that we will suffer real and substantial damage as a result of a breach of this Section and may seek injunctive relief for any actual or perceived breach and damages alone are not an adequate remedy.
10. Updates and Upgrades
10.1 We reserve the right, in our sole and absolute discretion, to make changes to the Software from time to time and without notice in how we offer and operate our business and at the same time to stop supporting any older version of the Software. You agree that upon notice, you will update or make any other changes to the Software, as indicated by us (or our Reseller, as applicable).
10.2 This ToS will govern any upgrades provided by us that replace and/or supplement the original Software unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
10.3 You acknowledge and agree that the trial features offered by us under our free subscription plan may be added, removed and/or limited at any time without advance notice. Further, features offered by us in our free plan may or may not form a part of the product subscribed by you which may impact your ongoing business operations. Therefore, you must choose your paid subscription plan carefully in accordance with your business requirements and our prevailing service offerings as per the Commercial Terms.
11. Third-Party Services
11.1 For the purposes of availing Services under these ToS, you acknowledge and agree that the Service may operate with, or may use, application programming interfaces (APIs) and/or other Third-Party Services, including without limitation through integrations or connectors to such Third-Party Services that are provided by us. We are not responsible for the operation of any Third-Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Other than Third Party Services licensed by and provided to you by us, you are solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. We do not make any representations or warranties with respect to Third Party Services or any third-party providers.
11.2 You further acknowledge and agree that your account information and usage information regarding the usage of a Third-Party Service integration through your account may be shared with that Third-Party Service.
12. Support Services
12.1 Reseller will provide applicable support for purchased Pinkfish Services to Customer. For the purposes of getting basic support and assistance in accessing the Software and availing the Services under these ToS, you may refer to the demos/information provided on our platform.
13. Intellectual Property
13.1 Ownership: All Intellectual Property Rights in the Software and Services or other technology, inventions, copyrights and works of authorship, know-how, software applications, routines, source and object code, APIs, processes and workflows used by us in the provision of the Services and all modifications and derivative works thereof is and remains our property. You must not dispute that ownership. Nothing in these ToS shall operate to assign or transfer any Intellectual Property Rights from us to you. We retain all rights not expressly granted to you in these ToS. To the extent we do not retain exclusive ownership of the intellectual property, we shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use the intellectual property, including incorporation into Software and Services.
13.2 Documents: All Intellectual Property Rights arising in connection with the use of the Services or subject matter of these ToS, Documentation, etc. (including all methodology used by us) will immediately upon creation vest in us and are, to the extent they can be, immediately assigned to us by you on their creation. You will sign all documents necessary to enable us to perfect registration in our name of any Intellectual Property Rights assigned under this agreement to us, and do all acts otherwise necessary to transfer ownership of the Intellectual Property Rights to us.
13.3 Restriction: You must not reproduce, modify or otherwise use or deal with the Intellectual Property Rights belonging to us except as expressly permitted by these ToS or with our written consent.
13.4 Usage Data: In connection with the Software and/or the Services, we may collect information about your access and use of the Software/Services, including but not limited to usage and performance information (“Usage Data”).
13.5 Aggregated Data. We may use Usage Data that has been aggregated and anonymized (i.e., any data that identifies the customer or customer’s end users has been removed) (“Aggregated Data”) derived from the Software/Services for research and development and market research purposes, to support and improve our products and services, including in the development of new features, products, tools, and content, and for other commercial purposes. The Aggregated Data will not be shared with any third party except for legitimate business purposes. We own all Intellectual Property Rights in and to the Aggregated Data and all related software, technology, Documentation and content provided in connection with the Aggregated Data.
13.6 Feedback: If you provide us or our Reseller with comments, ideas, or suggestions relating to improvement, modifications, or other feedback about the Software and/or the Services (“Feedback”), then all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modification or derivative works), are owned solely by us (without restriction or further obligation to you) and we may use the Feedback for any purpose.
13.7 Injunctive Relief: You acknowledge that we will suffer real and substantial damage as a result of a breach of this Section 13 and may seek injunctive relief for any actual or perceived breach and damages alone are not an adequate remedy.
14. Termination
14.1 Renewal: The renewal of your subscription will be governed by the terms of your agreement with the Reseller. If you have subscribed to the Services on Free Trial basis, this Agreement will automatically terminate upon expiry of the Free Trial Period, unless the Free Trial Period is mutually extended under any Commercial Terms executed with the Reseller.
14.2 Termination: Either party may terminate these ToS immediately by giving written notice of termination to the other party if:
14.3 Termination by us: We may terminate these ToS immediately on notice:
14.4 Suspension: Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Software and/or Services if we consider that you or any of your personnel have:
14.5 Termination of Reseller’s Agreement with Pinkfish. Following any termination or expiration of Reseller’s agreement with us authorizing Reseller to resell the Services and Software, your subscription to the Services outstanding at the time of such termination or expiration (“Legacy Order”) shall remain in effect until the end of its subscription term, and shall continue to be governed by these ToS, provided that you are not in breach of these ToS and we have received all payments due in connection with such Legacy Order(s) from the Reseller. Except as provided herein, following a termination or expiration of Reseller’s agreement with us, we are under no obligation to provide the Services directly to you, or to assume a direct contractual relationship with you.
14.6 Effect of Termination. Upon termination of these ToS, (a) the rights granted to you under the ToS will immediately terminate, (b) all fees owed by you to our Reseller will become immediately due upon receipt of a final invoice, and (c) and you must immediately cease use of the Software and the Services. Further, upon termination, we have no obligation to retain or store your Customer Data which may be deleted by us without further notice.
14.7 Survival. Upon termination of these ToS, parties’ obligations under Sections 6.3 (Restrictions); 6.5 (Source Code); 9 (Customer Data); 13 (Intellectual Property); 14.5 (Effects of Termination); 14.7 (Survival); 15 (Confidentiality); 16 (Limitation of Liability and Disclaimers); 17 (Release and Indemnity); 19 (General), and any other section which by its inherent nature should survive termination, will survive.
15. Confidentiality
15.1 Definition: As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including all software, source code, inventions, algorithms, techniques, methodologies, schematics, know-how, analyses, trade secrets, technical data, strategic planning, marketing data, databases, drawings, models, performance information and ideas and the terms and conditions of these ToS. The obligations in this Section shall not apply to any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (d) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality. Our Confidential Information includes non-public information regarding features, functionality and performance of the Software and the Service. Your Confidential Information includes Customer Data.
15.2 Confidentiality Obligations. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information of like kind, but in no event using less than a reasonable standard of care. A Party shall not: (a) disclose or use any Confidential Information of the other Party for any purpose outside the scope of these ToS, except with the disclosing Party’s prior written permission; and (b) disclose or make the other Party’s Confidential Information available to any party, except those of its Affiliates, employees, contractors, and agents that have signed or accepted an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of these ToS.
15.3 Compelled Disclosure. If a Party is compelled by law to disclose Confidential Information of the other Party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure. Due to the unique nature of the Parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a Party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching Party. Therefore, upon any such breach or threat thereof, the Party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it.
16. Limitation of Liability and Disclaimers
16.1 We exclude all liability and all warranties under these ToS to the maximum extent permitted by law, including but not limited to in relation to any use of the Software or any Services offered.
16.2 To the extent permitted by law, our liability and the liability of our employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at our option, to:
16.3 Our (and our affiliates’, licensors’, or suppliers’) liability arising in connection with the use of the Software or the Services is limited as follows:
16.4 No Liability for Customer Data: You are solely responsible for all of the Customer Data including its reliability, accuracy, quality and legality. We will not be liable for any element or issue with the Customer Data. You acknowledge that any Customer Data generated by the Software is an estimate only and should not be solely relied upon.
16.5 DISCLAIMER: EXCEPT TO THE EXTENT AS EXPRESSLY PROVIDED UNDER THIS TERMS OF SERVICE, OUR SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WE EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING UNDER THIS TERMS OF SERVICE. WE DO NOT WARRANT THAT THE SOFTWARE AND/OR THE SERVICES PROVIDED HEREUNDER ARE ERROR-FREE OR THAT OUR OPERATION WILL BE SECURE OR UNINTERRUPTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES ALL RISKS ARISING OUT OF USE OF THE SOFTWARE AND/OR THE SERVICES, EXCEPT TO THE EXTENT THAT WE ARE FOUND TO BE GROSSLY NEGLIGENT OR IN MATERIAL BREACH OF THIS TERMS OF SERVICE.
17. Release and Indemnity
17.1 Release: To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
17.2 Customer Indemnity: To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
17.3 Dictionary: In this section:
17.4 IP Indemnity: We will defend at our own expense any third-party claim, suit or proceeding brought against you insofar as it is based on a claim that the Software, as provided by us and used in conjunction with the Service, constitutes an infringement of a valid United States patent or a valid United States copyright. We will pay all damages, costs and expenses finally awarded to third parties as a result of a final judgment against you or settlement of such claim negotiated by us, but shall not be responsible for any compromise made without our consent. To qualify for such defense and payment, you must: (a) give us prompt written notice of any such claim, and (b) allow us to control, and fully cooperate with us in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in our opinion, such a claim is likely, we shall have the right, at our option, to obtain the right to continue the distribution of Software, substitute other products or services with similar operating capabilities and/or performance, or modify the Software so that it is no longer infringing or subject to a third-party claim. In the event that none of the above options are commercially practicable in your sole discretion, we may terminate these ToS and all accompanying licenses. In the event of such termination, you may as your sole and exclusive remedy obtain a refund from us (or our Reseller, as applicable) of the fees paid for Service subscriptions prorated for the remainder of any pre-paid subscription term unused by you. This Section states your entire liability for intellectual property misappropriation or infringement.
17.5 Restrictions. We will have no liability for any claim of infringement based on:
18 Force Majeure
18.1 Force Majeure Event: Neither party will be liable to the other for, or be considered to be in breach of or default under these ToS on account of, any delay or failure to perform as required by these ToS as a result of any cause or condition beyond such party’s reasonable control that could not have been avoided using a reasonable standard of care, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemic, epidemic and quarantine restrictions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
18.2 Notification: The affected party must promptly after becoming aware of a force majeure event, give written notice to the other party of the nature of the force majeure event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavors to limit the effects of the force majeure event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
18.3 Termination: In the event that any force majeure event as stated above prevails for a continuous period of more than six (6) months, the EULA may be terminated by either party by providing a written notice to the other party.
19. General
19.1 Additional Information: You hereby acknowledge and agree that (a) if your account has owners, or administrative users, such users may access, modify, and/or remove any information (including but not limited to Customer Data), content, or materials that you share with us; (b) we operate and control the Software and Services from a cloud service located in [insert name of the place], additionally, the Service and your information may be accessed, mirrored, and/or managed from various jurisdictions; and (c) our extended team, that includes our affiliates, may assist us in exercising our rights and performing our obligations under these ToS, our extended team does not include any Third-Party Services or their personnel.
19.2 Product Trials: We may offer you certain product features on a trial basis, designated as an alpha, a beta, an experimental, a test, or a limited release (“Product Trial”). The Product Trial features are Confidential Information under Section 15. Certain Product Trials may include additional terms which apply in addition to these ToS, in the event of conflict between such additional terms and ToS, the additional terms shall survive for the specific Product Trial. Notwithstanding anything contained herein, there is no warranty, indemnity, or support for Product Trials.
19.3 Notices: All notices must be in writing and shall be duly given when received, if personally delivered or sent by certified/registered mail, return receipt is required; when receipt is electronically confirmed, if transmitted by facsimile or by email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices are taken to be read on the day they are received as above, unless they are received after 5 PM or not on a business day, in which case they are deemed to be received on the next business day.
19.4 Assignment: You must not assign, sublicense or otherwise deal in any other way with any of your rights under these ToS. We may assign our rights under these ToS at our sole discretion.
19.5 Waiver: No breach of any provision of these ToS shall be waived except with the express written consent of the party not in breach.
19.6 Severability: Any provision of these ToS which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these ToS enforceable, unless this would materially change the intended effect of the ToS.
19.7 Third Party Rights: This ToS is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to these ToS are not subject to the consent of any third party.
19.8 Entire Agreement: This ToS shall constitute the entire agreement between the parties in relation to the subject matter of these ToS, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
19.9 Marketing: We shall have the right to use your name, logo, trademarks and service marks on our website and marketing materials in connection with identifying you as our customer.
19.10 Relationship: The parties are independent contractors and have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. Nothing in these ToS has any authority of any kind to bind both of us in an/a agency, partnership, joint venture, or employment relationship.
19.11 Governing Law and Jurisdiction: This ToS shall be governed by and construed in accordance with the law of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Subject to provisions of Section 19.13 below, the courts of Delaware shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with these ToS.
19.12 Export Compliance: The Software and other components of the Software which we may provide or make available to you may be subject to United States export control and economic sanctions laws and other foreign trade controls. You agree to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls.
19.13 Disputes: Any controversy or claim arising out of or relating to this ToS, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Parties hereby consent to arbitration in the State of California.
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