Provided below are the Articul8 AI General Terms and Conditions that are agreed to as part of the Agreement entered into between Articul8 AI (or Articul8) and CUSTOMER. Articul8 AI and CUSTOMER may be referred to herein individually as a party and collectively as the parties.
1.1 "Affiliate"
means an entity that directly or indirectly Controls, or is directly or indirectly Controlled by, or is under common Control with, either Articul8 or CUSTOMER. In this definition, "Control" means directly or indirectly owning or having voting control over at least fifty percent (50%) of the outstanding securities entitled to vote for the election of directors or similar managing authority of an entity.
1.2 "Agreement"
means this Agreement, including the Order Form and Initial SOW contained therein, the Order Form and any attached schedules or exhibits attached thereto, as executed by the parties and which may be amended from time to time in writing and signed by the authorized representatives of both parties.
1.3 "Articul8 AI GenAI Platform"
means a vertically integrated full-stack software platform that enables a unified enterprise software platform and application API layer, other than those aspects that are Open Source Code.
1.4 "Articul8 AI Product"
means the specific instantiation of the Articul8 GenAI Platform that is licensed as a Product to and made available for use by the CUSTOMER under the terms of this Agreement.
1.5 "Background IP Rights"
means all Intellectual Property Rights, trademarks, trade names, service marks, trade dress, and other forms of corporate or product identification owned, controlled, obtained, or licensed by a party at any time prior to the Term or arising from Technology created independently of this Agreement.
1.6 "Background Technology"
means Technology that is disclosed by one party to the other party during the Term, in the form as disclosed. Background IP Rights are included in a party's Background Technology.
1.7 "Base Model(s)"
means any software program that has been pre-trained on a specific set of data to find patterns, make predictions and/or perform specific tasks and is provided as part of the Articul8 AI GenAI Platform. Base Models are not trained using Customer Content.
1.8 "Claim"
means any legal proceeding brought by any third party.
1.9 "Confidential Information"
means any and all business and technical information of Discloser, or of a third party as to whom Discloser has an obligation of confidentiality, disclosed after the Effective Date and whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects or otherwise. Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, customer and supplier lists, and information relating to product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, development activities and results, and know-how.
1.10 "Customer Content"
means any software, application, video, image, information (excluding account information), data, Technology or other collateral that CUSTOMER uploads to, or develops or has developed on using the Articul8 AI GenAI Platform. For clarity, Customer Content does not include the Articul8 AI GenAI Platform, Materials, or any information related to or derivative works thereof.
1.11 "Copyright Rights"
means all copyrights, copyright applications, copyright registrations, or any analogous or related right arising under statutory or common law, anywhere in the world, including any rights from laws implementing the European Database Directive 96/9/EC.
1.12 "Customer Fine-Tuned Model(s)"
means any Base Models that have been tuned by or on behalf of CUSTOMER or its Affiliates including, without limitation, by your third-party contractors, on data owned or licensed by CUSTOMER or its Affiliates.
1.13 "Days"
means any day other than a Saturday, Sunday, or official holiday in the sender's or recipient's location designated in Section 10.
1.14 "Deliverable"
means the Articul8 AI Product and any associated Services, if any that are (A) identified and described in the Order Form or an applicable SOW as a deliverable for CUSTOMER; and (B) physically or electronically delivered from or provided by Articul8 AI to CUSTOMER.
1.15 "Derivative" or "Derivative Work"
means derivative works as defined in 17 U.S.C § 101 et seq.
1.16 "Discloser"
means a Party in its capacity as a provider of Confidential Information to the other Party.
1.17 "Feedback"
means information, comments, modifications, improvements, corrections, suggestions, enhancement, or other input regarding the Articul8 AI GenAI Platform or any information related thereto.
1.18 "Force Majeure Event"
means an event beyond a party's reasonable control including:
(A) an act of god (whether or not caused by human action), such as earthquake, fire, flood, hurricane, pandemic, and other natural disasters;
(B) an act of a government agency or civil or military authority, or civil disturbance;
(C) a malicious act or damage, such as sabotage, terrorism, vandalism, or cyberattacks;
(D) a protracted failure of an air, gas, water, or electrical or other energy source, or of a broadband, radio, or television broadcast, cellular, internet, satellite, telephone, or other communication system;
(E) production or supply-chain disruption; or
(F) other events of like nature.
1.19 "Including"
whether or not initially capitalized, means including but not limited to.
1.20 "Indemnitees"
means each party, its Affiliates, and its respective officers, directors, employees, contractors, successors and assigns.
1.21 "Infrastructure and Other Requirements"
are those minimum requirements that the CUSTOMER must satisfy with respect to compute, storage, networking, software and other Technology in order for the Articul8 AI GenAI Platform to operate, as set forth in the applicable SOW.
1.22 "Input(s)"
means any data that the Base Model processes, which may or may not be used for training.
1.23 "Intellectual Property Rights" or "IP Rights" or "IPR"
means all intellectual property rights, including Copyright Rights, Patent Rights, Trade Secret Rights, and mask work rights but excluding trademark rights, including trademarks, trade names, service marks, trade dress, or other forms of corporate or product identification.
1.24 "Losses"
means all actual claims, actions, liabilities, losses, damages, costs, fines, penalties, assessments, fees and expenses incurred by CUSTOMER Indemnitee arising out or in connection with this Agreement.
1.25 "Materials"
means the documentation, specification(s), software identifying information, product serial number, or other collateral, including updates and upgrades, associated with the Articul8 AI GenAI Platform. Materials do not include any third-party software, which may be subject to its own license terms and conditions.
1.26 "Model"
means a generative artificial intelligence model trained on a specific set of training data to find patterns, make predictions and/or perform specific tasks.
1.27 "Open Source Code"
means any software code that is distributed as "free software" (as defined by the Free Software Foundation) or "open source software" (as defined by the Open Source Initiative) or is otherwise distributed publicly in source code form under terms that permit modification and redistribution of such software. Open Source Code includes software code that is licensed under the GNU General Public License, GNU Lesser General Public License, GNU Affero General Public License, Mozilla Public License, Common Public License, Apache License, BSD License, MIT License, Artistic License, or Sun Community Source License.
1.28 "Output(s)"
means a Model's response to an Input that a user submits to a Base Model(s).
1.29 "Patent Rights"
shall mean issued patents or pending patent applications and any utility patent, design patent, provisional application, certificate or utility model, whether domestic or foreign, and all divisions, continuations, continuations-in-part, reissues, reexaminations, renewals or extensions thereof, and any letters patent that issue thereon.
1.30 "Personal Data"
means that term or its equivalent is defined under applicable data-protection and privacy laws or regulations.
1.31 "Personnel"
means a party and its Affiliates' employees, agents, contractors, and subcontractors who perform work under this Agreement.
1.32 "Product"
means a physical article of manufacture, platform, system, software, or service that is licensed, sold, or distributed (directly or indirectly) by a party under its trademarks or trade name.
1.33 "Recipient"
means a Party in its capacity as a recipient of Confidential Information from the other Party.
1.34 "SOW"
means a statement of work, with the "First SOW" being set forth and/or referenced in the Order Form, and subsequent SOW's separately identified thereafter. For clarity, these Articul8 AI General Terms and Conditions refer to an "applicable SOW" for a particular SOW, each of which, in combination with these Articul8 AI General Terms and Conditions form separate and distinct agreements.
1.35 "SOW Term"
means the period during which a specific SOW is in effect, as specified in such SOW.
1.36 "Technology"
means all information (including ideas, plans, know-how, data, algorithms, models, discoveries, inventions, processes, and methods); tangible embodiments (including hardware, devices, machinery, equipment, tools, apparatus, prototypes, samples, and compositions), and works of authorship (including documents, specifications, reports, presentations, software, firmware, code, libraries, databases, compilations, designs, schematics, and photographs), in any format on any media.
1.37 "Term"
has the meaning given to it in Section 7.1.
1.38 "Territory"
has the meaning given to it in the applicable SOW.
1.39 "Trade Secret Rights"
means all trade secret rights or any analogous right, arising under statutory or common law, anywhere in the world.
2.1 Scope of Work. Articul8 AI will provide the Articul8 AI Product and Services described in the Order Form. Each party will perform the work and complete their obligations according to the terms and conditions of this Agreement.
2.2 Payment Terms. Payment terms relating to this Agreement are specified in the Order Form.
3.1 Ownership of Background IP Rights. Each party retains ownership of its Background Technology and Background IP Rights. Neither party assigns nor transfers any ownership interest in its Background Technology or Background IP Rights under this Agreement.
3.2 Ownership and License of Articul8 AI GenAI Platform. Subject to Section 3.1, as between Articul8 AI and CUSTOMER, all IP rights in the Articul8 AI GenAI Platform shall vest in Articul8 AI, other than those portions of the Articul8 AI GenAI Platform that are based upon Open Source Code. Subject to the terms of this agreement, including CUSTOMER satisfying the Infrastructure and Other Requirements, Articul8 AI grants to CUSTOMER a non-exclusive, non-transferable, non-sublicensable license in the Territory set forth in the applicable SOW to use, execute, perform and display the Articul8 AI GenAI Platform set forth in the applicable SOW; provided such use does not breach CUSTOMER's confidentiality obligations to Articul8 AI or infringe Articul8 AI's Background IP Rights.
3.3 Core License Back. CUSTOMER agrees to license back to Articul8 AI improvements made by the CUSTOMER to the Articul8 AI GenAI Platform for the sole purpose of Articul8 AI improving its Articul8 AI GenAI Platform except to the extent any such improvements include any Customer Content or any specifics used to create the Fine Tuned Model for Customer. The parties acknowledge that nothing in this Section is intended to create a license to a party's Background IP Rights for use in the development of a generally available commercial product.
3.4 Feedback. Articul8 AI is free to reproduce, use, distribute, or otherwise freely exploit and dispose of any Feedback that CUSTOMER provides to Articul8 AI, without any further obligation to CUSTOMER including any duty of notice or further remuneration. The parties acknowledge that nothing in this Section is intended to create a license to a party's Background IP Rights for use in the development of a generally available commercial product.
3.5 Additional Licenses. Additional licenses may be agreed to by the parties, in writing, as necessary.
3.6 Subcontractors. Each party may permit its subcontractors and authorized agents (provided they are bound by equivalent confidentiality obligations and have obtained any necessary licenses) to do work on its behalf. Each party will remain responsible for all acts and omissions of its subcontractors as if they were its own.
3.7 Warranty. Each party represents and warrants that its Personnel have assigned, and are obligated to assign, all the Personnel's rights, title, and interest in all IP Rights to the entity that employs the Personnel.
3.8 Disclaimer of 35 U.S.C. §102(c). Each party agrees not to disclose, in a manner that has the effect of invoking the benefit of 35 U.S.C. §102(c), the name of the other party in any patent application for an invention arising under this Agreement.
3.9 No Other Licenses or Rights. Except as expressly granted in this Agreement, neither party grants to the other any rights or license, by implication, estoppel or otherwise, to any intellectual property rights, technology or assets it owns, is licensed to, or controls at any time.
3.10 Affiliate Rights. Notwithstanding any language to the contrary, any licenses granted by a party to a party's Affiliate in this Agreement will terminate immediately without notice on the day that the Affiliate no longer meets the definition of "Affiliate" under this Agreement. Licenses granted by that Affiliate under this Agreement, before it ceases to be an Affiliate, will remain in force.
3.11 No Preclusion. Neither party is precluded from developing for itself, or for others, anything, whether in tangible or non-tangible form, that is competitive with, or similar to, any of the Deliverables, provided that neither party may use any Confidential Information of the other party for which it does not have a license to use for such purposes. The parties agree that receipt of Confidential Information under this Agreement will not create any obligation that in any way limits or restricts the assignment and/or reassignment of the receiving party's employees within their organizations.
3.12 Residuals. Each party acknowledges that the other party may now have, or in the future may develop or receive, information that is the same as, or similar to, the disclosing party's Confidential Information without having breached this Agreement. Nothing in this Agreement (a) prevents the receiving party from using, for any purpose and without compensating the disclosing party, information retained in the unaided memory of the receiving party's Personnel who have had access to Confidential Information or (b) obligates the receiving party to restrict the scope of employment of the receiving party's Personnel; provided, however, that this section does not create a license under any Intellectual Property Rights of the disclosing party.
3.13 Additional License Terms.
3.13.1 Ownership. As between CUSTOMER and Articul8 AI, all right, title, and interest in and to the Articul8 AI GenAI Platform, Materials, and associated information that Articul8 AI may provide to CUSTOMER under this Agreement, including all intellectual property rights therein, are and will remain the exclusive property of Articul8 AI and its licensors or suppliers. For avoidance of doubt, Articul8 AI owns all right, title and interest to all Intellectual Property Rights) in the Articul8 AI GenAI Platform, and any Base Models, including any developments and improvements to any Base Model or to any Articul8 AI product that occur during the course of the Agreement, whereas CUSTOMER will own all right, title and interest to any Customer Fine Tuned Model built using Customer Content that is provided to CUSTOMER.
3.13.2 All right, title, and interest in and to any of CUSTOMER'S or CUSTOMER'S Affiliates' Confidential Information are and will remain the exclusive property of CUSTOMER or CUSTOMER'S Affiliates.
3.13.3 With the exception of any Inputs, Outputs, Customer Content, and Customer Fine-Tuned Models, Articul8 AI is the sole and exclusive owner of any and all right, title, and interest in and to any other work product, materials, discoveries, inventions, designs, and any other information, including the intellectual property rights therein, made by Articul8 AI that result from or arise under any professional, advisory or other services or support that Articul8 AI may provide to CUSTOMER during the Term. All CUSTOMER provided Inputs, Outputs, Content and Customer Fine-Tuned Models shall be owned exclusively by CUSTOMER without restriction or obligation.
3.13.4 Any Customer Fine-Tuned Models or models prompt engineered using CUSTOMER'S or CUSTOMER'S Affiliates' information or data, Inputs, and other materials, can only be used by Articul8 AI internally, for the sole benefit and support of CUSTOMER, and only during the term of the Agreement. For the avoidance of doubt, under no circumstances may Articul8 AI fine-tune, improve or develop its own or third party's software, products or services or AI technologies, whether now existing or in the future, using any of the foregoing items in this paragraph.
3.13.5 License Restrictions.
3.13.5.1 License Limitations. Unless expressly permitted and excluding in connection with any Customer Fine-Tuned Models, Input, or Output, CUSTOMER will not, and will not allow any third-party to, directly or indirectly: (i) copy, distribute, modify, incorporate or use in any other works, translate, transfer, sell, sublicense, reverse engineer (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions), decompile, disassemble, revise or enhance the Articul8 AI GenAI Platform or attempt to discover or derive the Articul8 AI GenAI Platform Source Code, or create Derivative Works based on the Articul8 AI GenAI Platform, the Materials or any other information that may be provided by Articul8 AI; (ii) disclose, distribute, sell, sublicense, rent, lease or use the Articul8 AI GenAI Platform or the Materials (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Articul8 AI GenAI Platform available to third parties absent an express agreement from Articul8 to do so; (iii) use or access the Articul8 AI GenAI Platform to perform benchmarking or any other kind of performance analysis, or publish or provide any benchmark or comparison test results concerning the Articul8 AI GenAI Platform, the Platform or any elements thereof without Articul8 AI's prior written consent; (iv) work around any technical limitations or security controls in the Articul8 AI GenAI Platform; or (v) remove or modify any proprietary or confidentiality notices, labels or marks on or in the Articul8 AI GenAI Platform or the Materials.
3.13.5.2 No Unlawful or Prohibited Use. CUSTOMER agrees to not use the Articul8 AI GenAI Platform to upload any Content for any purpose that is unlawful or prohibited by these terms or the law. CUSTOMER may not upload or post to the Articul8 AI GenAI Platform any Content that: (i) is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) CUSTOMER do not have a right to make available under any law or contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (iii) infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any other party; (iv) enables any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications, reports and recommendations; or (vi) is directly related to military, defense, aerospace, nuclear, biological or chemical weapon end uses or in support of law enforcement, national security, military, or foreign policy objectives.
3.13.5.3 Additional Limitations. CUSTOMER may not use the Articul8 AI GenAI Platform to: (i) "stalk" or otherwise harass or harm another; (ii) impersonate any person or entity, including, but not limited to, an Articul8 AI official, forum leader, guide or host, or falsely state or otherwise misrepresent CUSTOMER'S affiliation with a person or entity or collect or store Personal Data about other users in connection with the prohibited conduct and activities; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Articul8 AI GenAI Platform; (iv) use the Articul8 AI GenAI Platform in any manner that could damage, disable, overburden, or impair the Articul8 AI GenAI Platform, or interfere with any other party's use and enjoyment of the Articul8 AI GenAI Platform; (v) attempt to gain unauthorized access to the Articul8 AI GenAI Platform, other accounts, or other computer systems or networks connected to the Articul8 AI GenAI Platform through hacking, password mining or any other means or obtain or attempt to obtain any materials or information through any means not intentionally made available by Articul8 AI; (vii) violate any applicable local, state, national or international law, including, but not limited to, laws and regulations of the United States and other countries governing the export, import, transfer, distribution, use, or access of the Articul8 AI GenAI Platform; and/or (viii) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
3.13.6 Open Source Software. Articul8 AI GenAI Platform may include Open Source Code licensed pursuant to Open Source Code license agreement(s) identified with or within the applicable Source Code file(s) and/or file header(s) provided with the Articul8 AI GenAI Platform or otherwise disclosed in the associated Materials. CUSTOMER shall not subject any proprietary portion of the Articul8 AI GenAI Platform to any Open Source Code license obligations including, without limitation, combining or distributing the Articul8 AI GenAI Platform with Open Source Code in a manner that subjects Articul8 AI, the Articul8 AI GenAI Platform, or any portion thereof to any Open Source Code license obligation. Nothing in this Agreement limits any rights under, or grants any rights superseding, the terms of any Open Source Code license applicable to the Articul8 AI GenAI Platform. CUSTOMER'S right to use such Open Source Code is governed by the terms of the open source license agreement(s) and not under the Agreement.
3.13.7 Third-Party Software. Use of certain third-party software that is not Open Source Code provided on the Platform or with(in) the Articul8 AI GenAI Platform may require that CUSTOMER: (a) secure a license directly from the software owner, (b) combine the software with components purchased from such third-party, or (c) adhere to further license limitations by the software owner. A listing of any such third-party limitations is in one or more text files accompanying the Articul8 AI GenAI Platforms. CUSTOMER acknowledges that it is CUSTOMER'S responsibility to obtain necessary licenses from such third-party(ies) directly.
3.13.8 Trademarks. Nothing in this Agreement provides CUSTOMER with any license, express or implied, to use Articul8 AI's trademarks or similar rights. CUSTOMER may not use Articul8 AI's name or logo in any publications, advertisements, or other announcements without Articul8 AI's prior written consent.
3.13.9 No other Licenses, Express, Implied, or Statutorily Recognized. The consideration provided by CUSTOMER to Articul8 AI is made solely in exchange for the license and/or permission expressly granted to CUSTOMER by Articul8 AI under the Agreement. Any other rights not expressly granted herein including, but not limited to, patent rights, are expressly excluded from the scope of the limited license grant and will require an additional license and additional consideration, each defined and offered in Articul8 AI's sole discretion. Nothing in this Agreement requires or will be treated to require Articul8 AI to grant any additional license. CUSTOMER acknowledge that an essential basis of the bargain in this Agreement is that Articul8 AI grants CUSTOMER no licenses or rights including, but not limited to, patent, copyright, trade secret, trademark, trade name, service mark or other intellectual property licenses or rights with respect to the Articul8 AI GenAI Platform by implication, estoppel or otherwise, except for the licenses expressly granted. CUSTOMER acknowledge there are significant uses of the Articul8 AI GenAI Platform, Materials, and associated information in their original, unmodified, and uncombined form. The consideration for the licenses or permissions in this Agreement reflects Articul8 AI's continuing right to assert patent claims against any modifications or Derivative Works (including, without limitation, error corrections and bug fixes) of, or combinations with, the Articul8 AI GenAI Platform, Materials, or associated information that CUSTOMER, CUSTOMER'S affiliates, or third-parties may make that infringe any Articul8 AI patent claim.
3.14 CUSTOMER'S Content: Ownership and Responsibilities.
3.14.1 Content Ownership. As between CUSTOMER and Articul8 AI, all right and interest in and to CUSTOMER'S Content, including all intellectual property rights therein, are and will remain the exclusive property of CUSTOMER and CUSTOMER'S licensors or suppliers.
3.14.2 CUSTOMER'S Representation & Warranty of Content. CUSTOMER represent and warrant that CUSTOMER are solely responsible for all Content and activity in CUSTOMER'S account associated with the Articul8 AI GenAI Platform (to the extent Articul8 AI has complied with all of its obligations under the Agreement); and, as relevant, (ii) ensuring CUSTOMER have the right to use, transmit, and store Content on the Platform or in association with the Articul8 AI GenAI Platform. CUSTOMER acknowledge and agree CUSTOMER will indemnify, hold harmless, and, in Articul8 AI's sole discretion defend, Articul8 AI and its suppliers from and against any claims or lawsuits, including attorney's fees, to the extent solely and directly resulting from the access, use, or storage of Content with(in) the Platform or the Articul8 AI GenAI Platform in violation of this Agreement provided Articul8 AI has not violated any terms of this Agreement or has otherwise committed negligence, fraud or willful misconduct.
4.1 Confidential Information.
(a) Maintenance of Confidentiality and Limitations on Use. Recipient will hold in strict confidence and keep confidential all Confidential Information disclosed to it by Discloser. Recipient will use at least the same degree of care to avoid publication, disclosure or dissemination of such Confidential Information as it uses with respect to similarly confidential information of its own, but in no event less than reasonable care. Use of such Confidential Information by Recipient will be strictly limited to activities directly in support of considering entering into a business arrangement with Discloser related to the Business Purpose. Recipient will disclose such Confidential Information on a need-to-know basis, only, and in all events only to such employees, independent contractors and advisers who are informed of the confidential nature of the Confidential Information and are bound by obligations substantially similar to those set forth herein applicable to such Confidential Information.
(b) Copying and Return of Confidential Information. Recipient shall only use Confidential Information of Discloser as reasonably required to perform under this Agreement. Upon termination of this Agreement Recipient shall promptly cease using and shall return or destroy (and, if requested by Discloser, certify destruction of) all such Confidential Information along with all tangible and electronic copies which it may have made, and obligations of Recipient set forth herein regarding use and disclosure of Confidential Information of Discloser will be perpetual.
(c) Certain Exceptions. Information will not be, or will cease being, Confidential Information, as the case may be, as follows:
(i) from and after the date that such information enters the public domain other than by breach of this Agreement on the part of Recipient;
(ii) if it is rightfully known to Recipient without obligation of confidentiality to any third party prior to receipt of same from Discloser as evidenced by bona fide written, dated documents;
(iii) if it is developed by the Recipient without using any of the Confidential Information of Discloser; and
(iv) from and after the date that it is generally made available to third parties by Discloser without obligation of confidentiality.
(d) Legally Required Disclosure. Recipient shall not be in breach hereof if it discloses Confidential Information of Discloser pursuant to a judicial or governmental order, or as required by applicable law, but any such disclosure shall be made only to the extent so ordered or required. In any such event, Recipient (i) shall timely notify Discloser so that it may intervene in response to such order or take action to protect its interests (in which event Recipient will cooperate in such effort), or (ii) if timely notice cannot be given, shall seek to obtain a protective order or confidential treatment from the court or government for such information.
4.2 Certain Intellectual Property Matters.
(a) Title. As between the Parties, title or right to possess Confidential Information of Discloser shall remain in Discloser.
(b) Decompilation. Recipient shall not reverse engineer, disassemble or decompile any prototypes, software or tangible objects that embody or reflect Confidential Information of Discloser.
(c) Other Proprietary Rights. Nothing in this Agreement shall be construed as granting or conferring any rights to any Confidential Information or copyrights, by license or otherwise, except as stated explicitly in this Agreement or any rights or licenses in or to any patents, trademarks or service marks, by license or otherwise.
4.3 No Representation or Warranty with Respect to Confidential Information. DISCLOSER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO ANY CONFIDENTIAL INFORMATION IT MAY PROVIDE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS-IS" BASIS AND RECIPIENT ASSUMES ALL RESPONSIBILITY FOR ITS USE THEREOF OR RELIANCE THEREON.
5.1 Each party will safeguard the physical integrity and condition of all equipment and facilities where it holds, stores or archives the other party's Confidential Information. Each party will conduct ongoing (annual or when changes occur) security assessments so that such party's security protocols are maintained in accordance with generally accepted industry practices.
5.2 Each Party agrees to only use, store, process, transfer, or transport the other party's Confidential Information in an encrypted or anonymized electronic format (including but not limited to unencrypted computers or laptops, data tapes, USB keys or drives, hard drives and similar devices) and will implement Full Disk encryption on all workstations and laptops.
5.3 Each party will educate and train its employees and contractors regarding proper use, handling and security of Confidential Information and its own data security program.
5.4 In the event of a breach of confidentiality arising out of the acts or omissions of a party's employee, agent or representative, that party will notify the other party without undue delay, and will promptly undertake industry-standard remediation efforts. Following the breach and the commencement of remediation efforts by a party, that party will provide reports to the other party of all remediation efforts as necessary.
6.1 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY OR ENFORCEABILITY OF ANY IP RIGHTS.
6.2 Indemnification.
6.2.1 Articul8 AI Indemnification
6.2.1.1 Non-IP Indemnification. Articul8 AI's Indemnification to CUSTOMER. Articul8 AI shall indemnify and hold CUSTOMER Indemnitees harmless from and against Claim against a CUSTOMER Indemnitee to the extent such Claim is based on, arises from, or relates to: Articul8 AI's gross negligence, fraud, or willful misconduct.
6.2.1.2 Exceptions. Articul8 AI's indemnity obligations of Section 6.2.1.1 will not apply to any Claim to the extent based on the breach of this Agreement, gross negligence, willful misconduct, fraud or violation of law by a CUSTOMER Indemnitee.
6.2.1.3 IP Indemnification. Subject to CUSTOMER'S continued compliance with the terms and conditions of the Agreement, Articul8 AI will indemnify, defend, and hold CUSTOMER Indemnitees harmless against any Losses that arise out of or in connection with a Claim against a CUSTOMER Indemnitee that the Articul8 AI GenAI Platform that Articul8 AI provides to CUSTOMER, alone and not in combination with anything else directly infringes or misappropriates such third party's intellectual property rights; provided that CUSTOMER, where applicable to defend against a Claim: (i) provide Articul8 AI with prompt written notice of the Claim, (ii) tender to Articul8 AI the right to solely control and conduct the defense and any settlement of the Claim, and (iii) CUSTOMER'S reasonable cooperation with Articul8 providing Articul8 AI with all reasonably requested authority, information, and assistance. Articul8 will not be responsible for any costs, expenses, or compromise incurred or made by CUSTOMER without Articul8 AI's prior written consent.
6.2.1.4 Exclusions to Articul8 AI's IP Indemnification. Notwithstanding anything else in the Agreement, the following listed Claims of Section 6.2.1.3 are excluded, but only to the extent there would not have been infringement or violation, but for one of the actions of the Company listed below:
(A) those asserted against the Articul8 AI GenAI Platform in combination with anything else;
(B) those asserted against Open Source Code elements included within or that may interoperate with the Articul8 AI GenAI Platform, regardless of whether Articul8 AI contributed to such Open Source Code element, or whether Articul8 AI specified or recommended the use of such Open Source Code with(in) the Articul8 AI GenAI Platform;
(C) those asserted against Articul8 AI software in combination with anything other than, or in addition to, an associated Articul8 AI service that is not supplied or authorized by Articul8 AI;
(D) those that arise from or as a result of CUSTOMER'S use of the Articul8 AI GenAI Platform in a manner that is not compliant with the terms and conditions of this Agreement; and
(E) those asserting CUSTOMER'S willful infringement.
6.2.1.5 Defense, Settlement and Remedies. At its option, Articul8 AI will solely control and conduct the defense and any settlement of indemnified claims. CUSTOMER may, at its sole cost and expense, retain it counsel and aid and support in the defense and settlement of claims. Articul8 AI may, in its sole discretion and at its own expense: (i) procure for CUSTOMER the right to continue using the Articul8 AI GenAI Platform; (ii) replace the Articul8 AI GenAI Platform with a non-infringing alternative; (iii) modify the Articul8 AI GenAI Platform so that it becomes non-infringing; or (iv) credit CUSTOMER the fees received from CUSTOMER solely associated with the subject Articul8 AI GenAI Platform, in each case (i-iv) subject to Articul8 AI's Limitation of Liability under the Agreement.
6.2.1.6 Personal Indemnity. The foregoing indemnities are personal to the CUSTOMER Indemnitees to whom indemnification is owed under the Agreement. Unless otherwise provided in this Agreement, the CUSTOMER Indemnitee may not assign, transfer, or pass-through this indemnity to its customers, successors, or assigns, whether through contract, arising under operation of law, or under any other theory.
6.2.1.7 Exclusive Remedy. The foregoing states Articul8 AI's entire obligation and the exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, under the Agreement.
6.2.2 CUSTOMER Indemnity
6.2.2.1 CUSTOMER'S Indemnification to Articul8 AI. Subject only to the exclusions below, CUSTOMER will indemnify and, at Articul8 AI's sole discretion defend, and hold harmless Articul8 AI from and against any third-party claim asserted against Articul8 AI to the extent resulting from CUSTOMER'S access to or use of the Articul8 AI GenAI Platform that is not covered by the scope of Articul8 AI's indemnification to CUSTOMER and that is in violation or breach of this Agreement. CUSTOMER agrees to pay all of Articul8 AI's losses, liabilities, and costs (including reasonable attorney's fees) arising from or as a result of any such claims provided that: (i) Articul8 AI provides CUSTOMER with prompt written notice of the claim, (ii) Articul8 AI provides its full and timely cooperation in the defense of the claim, and (iii) Articul8 AI does not commit to a settlement of the claim without CUSTOMER's prior written consent, not to be unreasonably withheld.
6.2.2.2 Exclusions to CUSTOMER's Indemnification. Notwithstanding the foregoing, CUSTOMER will not have any obligation to indemnify or defend Articul8 AI from and against claims directly asserted against the Articul8 AI GenAI Platform solely in combination with Articul8 AI hardware or Articul8 AI software and not in combination with anything else.
6.3 Limitation of Liability. NEITHER PARTY OR ITS AFFILIATES WILL BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING ANY DAMAGES FROM THE LOSS OF PROFITS, REVENUE, PRODUCTION, USE, OR DATA OTHER THAN PERSONAL DATA OR CONTENT, REGARDLESS OF WHETHER THOSE DAMAGES ARISE IN CONTRACT OR TORT OR WHETHER THE PARTIES ARE AWARE OF THE POSSIBILITY OF THOSE DAMAGES. NOTWITHSTANDING THE ABOVE, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM, ACTION, OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR STATUTE), WILL NOT EXCEED THE AMOUNTS PAID TO THE OTHER PARTY IN A 12-MONTH PERIOD UNDER THIS AGREEMENT OR $25,000, WHICHEVER IS GREATER. MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMITATION.
7.1 Term. This Agreement becomes binding and effective as of the Effective Date and continues until the completion of the term as set forth in the Order Form or the applicable SOW (the "Term").
7.2 Termination for Material Breach. Either party may terminate this Agreement and the applicable SOW for an uncured material breach set forth in writing. A notice of material breach from one party must state the provisions that have been breached and the facts establishing a breach to the other party. If thirty (30) days after notice delivery (or on a later date stated in the notice or as otherwise agreed to between the parties in writing) the breach has not been cured, the one party may terminate the applicable SOW and this Agreement to the extent that it relates to the applicable SOW reserving all right of recourse.
Sections 1, 3.1-3.2, 4, 6.1, 6.3, 10 and 11 and other terms which are by their nature intended to survive termination will survive termination of this Agreement.
Notices must be written in English and sent to both the mailing and email addresses of the other party specified in the Order Form of this Agreement, as well as with the form of delivery specified in the Order Form of this Agreement.
10.1 These Articul8 AI General Terms and Conditions, including Sections 1-11 of this document, along with the Order Form and each applicable SOW together contain the complete and exclusive agreement between the parties concerning its subject matter, and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and communications between the parties relating to its subject matter. For clarity, these Articul8 AI General Terms and Conditions, along with the Order Form and any SOW that form this Agreement have precedence over any purchase order or other documentation of CUSTOMER.
10.2 This Agreement and the applicable SOW, including its termination, has no effect on any separately signed non-disclosure agreements between the parties (including those referenced in this Agreement), which remain in full force and effect as separate agreements according to their terms.
10.3 The express provisions of this Agreement and the applicable SOW control over any course of performance, course of dealing, or usage of the trade inconsistent with any of the provisions of this Agreement and the applicable SOW.
11.1 Amendments. No amendment or modification to this Agreement will be effective unless in writing and signed by authorized representatives of both parties.
11.2 Anti-Reliance. Each party agrees that, in entering into this Agreement, (A) it has relied solely on the results of its own investigation of the facts and circumstances, its own business judgment, and the express terms and conditions in this Agreement, and (B) it has not relied on and is not entitled to rely on any oral or written understanding, condition, representation, warranty, or communication that is not expressly set forth in this Agreement.
11.3 Assignment. Neither Party may delegate, assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in party, without the prior written agreement of the other Party and any attempt to do so will be null and void.
11.3.1 Permitted assignments. Consent is not required under Section 11.3 for Articul8 AI to assign or delegate all or any of its rights or obligations under this Agreement to its U.S. Affiliate or to an acquirer of all or substantially all of its business or assets (including by direct or indirect change of ownership or control, by operation of law or in connection with a merger, spin-off, division, allocation of assets, creation or reorganization into series, consolidation, amalgamation or sale of substantially all the assets of a Party).
11.4 Force Majeure.
11.4.1 A party is not liable for its delay in performing, or its failure to perform, any obligations under this Agreement to the extent that the delay or failure to perform is caused by a Force Majeure Event.
11.4.2 A party seeking to excuse its delay in performing or failure to perform must give prompt written notice of the Force Majeure Event after it occurs and describe the circumstances causing, and the anticipated duration of, any actual or anticipated delay or failure to perform.
11.4.3 A party seeking to excuse its delay in performing or failure to perform must use commercially reasonable efforts to minimize the effects and duration of its nonperformance.
11.4.4 The rights and remedies in Sections above are in addition to any other rights and remedies provided by law or in equity, including the doctrines of impossibility of performance or frustration of purpose.
11.4.5 A Force Majeure Event that is continuous, but changes in severity or impact, may constitute more than one Force Majeure Event. For example, Covid-19-related issues can be fluid and newly imposed restrictions or warnings, or travel inaccessibility, may cause a new Force Majeure Event to occur.
11.5 Governing Law. California and United States law governs this Agreement and any dispute arising out of or relating to it without regard to conflict of laws principles. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980).
11.6 Compliance with Laws. Each party shall comply and shall cause its authorized agents and, in the case of services where subcontracting has been authorized by Customer, subcontractors to comply with all applicable laws, rules, regulations and safety orders in connection with this Agreement. It is understood and agreed that such laws include, but are not limited to, federal, state, local, equal employment opportunity, compensation, benefit, immigration, rights of the disabled, privacy, anti-money laundering, the European Union's General Data Protection Regulation (Regulation (EU) 2016/679) and trade compliance.
11.7 Jurisdiction. Except as otherwise provided in this Section, the state and federal courts in San Jose, California will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement. The parties consent to personal jurisdiction and venue in those courts. Any claims for misappropriation of trade secrets and breach of confidentiality obligations may also be brought in any court that has jurisdiction over the parties if the relief sought includes injunctive or other non-monetary relief. A party that obtains a judgment against the other party in the courts identified in this Section may enforce that judgment in any court that has jurisdiction over the parties. The U.N. Convention on Contracts for the International Sale of Goods (1980) will not apply to this Agreement.
11.8 Headings. The section and paragraph headings in this Agreement are for convenience of reference only and must not affect the interpretation of this Agreement.
11.9 Injunctive Relief. Either party at any time may seek an injunction or other equitable remedies against the other party for misappropriation of trade secrets or breach of confidentiality obligations without complying with the dispute resolution process in Section 8. CUSTOMER acknowledge and agrees that, due to the unique and commercially sensitive nature of Articul8 AI's confidential information, there will be no adequate remedy at law for any breach of CUSTOMERS obligations under this Agreement. Any such breach will result in irreparable harm to Articul8 AI and, upon any such breach or any threat thereof, Articul8 AI will be entitled to seek, in any venue of competent jurisdiction, appropriate equitable relief including, but not limited to, an injunction in addition to whatever remedies it may have under law.
11.10 No Construction Against the Drafter. Both parties will be considered to have drafted this Agreement, and each party waives any rule of construction providing that ambiguities will be construed against the drafting party.
11.11 Trade Compliance. A party's provision of Technology must be in compliance with all applicable trade laws and regulations. Each party will not export or re-export, either directly or indirectly, any Technology or Product obtained from the other party, without first complying with applicable government laws and regulations governing the export, re-export, and import of those items. Upon a party's request, the other party agrees to provide export classifications, Harmonized Tariff Schedule classifications, or other information necessary for compliance with applicable trade laws and regulations for all Technology provided under this Agreement.
11.12 Public Announcement; Preferred Service Provider. CUSTOMER agrees that Articul8 AI or any of its Affiliates may, in its discretion, issue announcements in the form of press releases or media alerts that describe your and your Affiliates' use of the Services.
11.13 Third Party Rights. This Agreement is made for the benefit of the parties and is not intended to benefit or be enforceable by any third party. The rights of the parties to terminate, rescind, amend, waive, or vary any term of, or to settle disputes regarding, this Agreement, are not subject to the consent of any third party.
11.14 Waiver. No waiver of any provision of this Agreement will be valid unless in a writing signed by the waiving party that specifies the provision being waived. A party's failure or delay in enforcing any provision of this Agreement will not operate as a waiver.
11.15 Severability. If a court holds a part of this Agreement unenforceable, including any of these Articul8 AI General Terms and Conditions contained herein, the court will modify that part to the minimum extent necessary to make that part enforceable, or if necessary, sever that part. The rest of this Agreement remains fully enforceable.