sāf.ai Terms of Service
Terms of Service
These Terms of Service (the "Terms") and any accompanying or future Order Form you enter into with sāf.ai, Inc. ("sāf.ai" or "we") issued under these Terms (together with these Terms, the "Agreement") govern your access to and use of the services provided to you by sāf.ai (the "sāf.ai Services"). As set forth in an Order Form or as otherwise agreed to by sāf.ai, the sāf.ai Services may include one or more of the following: (a) subscription software data processing services (the "Platform Services"), (b) subscription support services ("Support Services"), (c) training services (the "Training Services"), (d) professional services (the "Professional Services"), or (e) any other services the parties agree in an Order Form that sāf.ai will provide. If you are acting on behalf of an entity, you represent and warrant that you are authorized to bind that entity to these Terms, in which case "Customer," "you," or "your" shall refer to that entity (otherwise, such terms refer to you as an individual). By accepting these Terms, either by executing these Terms separately or by executing an initial Order Form that indicates your acceptance of these Terms (an "Initial Order Form"), whether by signature or by clicking an "I Accept" button or checkbox, you agree in full to these Terms. If you do not have authority to bind your entity or do not agree with these Terms, you must not accept these Terms and may not use the sāf.ai Services. The "Effective Date" of these Terms is the earliest to occur of the effective date of the Initial Order Form, the date you execute these Terms, or the date you first access or use the sāf.ai Services.
In the event of conflict or inconsistency among the following documents, the order of precedence is as follows: (1) the Order Form; (2) a statement of work mutually agreed by by both parties, as applicable ("SOW"); (3) this Terms of Services agreement.
Certain Definitions. Certain terms not defined elsewhere in the Agreement are defined below in this Section. Capitalized terms used but not defined in an Order Form shall have the meaning assigned to them, if any, within these Terms.
- "Acceptable Use Policy" means the acceptable use policy governing the Platform Services, made available at https://docs.saf.ai/policies/aup (or such other location as sāf.ai may provide, and as may be updated from time to time).
- "Affiliate" of a party means an entity that Controls, is Controlled by, or is under common Control with such party.
- "Applicable Data Protection Laws" means all world-wide data protection and privacy Laws applicable to the processing of the Personal Data in question, including without limitation to the extent applicable, those of the United States, the European Economic Area (including the European Union and their member states, Switzerland, and the United Kingdom) ("EEA"), Canada, Australia, Japan, and Singapore.
- "Authorized User" means employees or agents of Customer (or other individuals solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Subscription Services. "BAA" means a business associate agreement as defined by HIPAA (or substantively similar agreement if you are not in the United States and/or are not regulated by HIPAA), governing the parties' respective obligations with respect to any PHI that may be contained within Customer Content.
- "Beta Service" means any sāf.ai Service (or feature of a sāf.ai Service) that is clearly designated as "beta", "experimental", "preview" or similar, that is provided prior to general commercial release, and that sāf.ai at its sole discretion offers to Customer, and Customer at its sole discretion elects to use.
- "Cloud Provider" means, unless specified otherwise in an Order Form, Google Cloud Platform ("GCP").
- "Confidential Information" means any business or technical information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all Customer Content is considered to be Customer's Confidential Information, all non-public elements of the sāf.ai Services and any Beta Services are considered to be sāf.ai's Confidential Information, and the terms of this Agreement, any information that either party derives relating to the conduct or performance of the other party's personnel, services or Systems, and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information shall not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.
- "Control," "Controlled" or "Controlling" means, whether direct or indirect: (a) the beneficial ownership of more than fifty percent (50%) of the voting equity securities, or the substantively equivalent voting interests, of an entity; or (b) the ability to determine the strategic direction or operating decisions of an entity.
- "Customer Cloud Environment" means the cloud environment provided by the Cloud Provider into which sāf.ai deploys the Customer Data Plane.
- "Customer Content" means all Customer Data, Customer Instructional Input, and Customer Results.
- "Customer Data" means the data, other than Customer Instructional Input, made available by Customer and its Authorized Users for processing by, or use within, the Subscription Services.
- "Customer Data Plane" means the elements of the Platform Services deployed into the Customer Cloud Environment; the primary processing of Customer Data by the Platform Services occurs within the Customer Data Plane and this activity results in fees being charged to Customer by Cloud Provider (e.g., for EC2 compute resources in the Customer Cloud Environment). For the avoidance of doubt, the term Customer Data Plane does not include Customer-controlled storage, including but not limited to Customer's AWS S3 bucket (and for which Customer may incur separate charges).
- "Customer Instructional Input" means information other than Customer Data that Customer inputs into the Platform Services to direct how the Platform Services process Customer Data, including without limitation the code and any libraries (including third party libraries) Customer utilizes within the Platform Services.
- "Customer Results" means any output Customer or its Authorized Users generate from their use of the Platform Services.
- "sāf.ai Control Plane" means the elements of the Platform Services residing within sāf.ai's Cloud Provider account, including without limitation the user interface of the Platform Services.
- "Documentation" means the documentation related to the Platform Services located at https://docs.saf.ai/ (or such other location as sāf.ai may provide, and as may be updated from time to time).
- "DPA" means the sāf.ai Data Processing Addendum applicable to sāf.ai Customers, available on the Effective date at https://docs.saf.ai/dpa.
- "Excluded Claims" means claims arising from (a) personal injury or death caused by the negligence of a party, its employees or agents; (b) fraud or fraudulent misrepresentation; (c) sāf.ai's indemnification obligations for an IP Claim; or (d) Customer's indemnification obligations.
- "Fees" means all amounts payable for sāf.ai Services under an applicable Order Form.
- "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time-to-time.
- "Intellectual Property Rights" means all worldwide intellectual property rights available under applicable law including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, and databases.
- "IP Claim" shall have the meaning assigned to such term in Section 8.1.
- "Laws"means any international, federal, state, provincial or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality, and any self-regulatory regimes applicable to Customer's use of the sāf.ai Services.
- "Monthly PAYG Service" means the Platform Services provided on a month-to-month basis with payment based only on Customer's usage of the Platform Services during the billing month.
- "Order Form" means an order form, online order (including click-thru setup of the Platform Services) or similar agreement, including any exhibits or attachments thereto, for the provision of sāf.ai Services, entered into by the parties, incorporated by reference into, and governed by, the Agreement.
- "PCI-DSS" means the Payment Card Industry Data Security Standard.
- "Personal Data" shall have the meaning given to such term (or substantively equivalent term) under the Applicable Data Protection Laws.
- "PHI" means health information regulated by HIPAA or by any similar privacy Law governing the use of or access to health information.
- "Subscription Services" means the Platform Services and Support Services.
- "System" means any application, computing or storage device, or network.
a) Minimum Terms. Order Forms for sāf.ai Services shall identify: (i) specific sāf.ai Services to be provided, (ii) any limitations on permitted use that may differ from those set forth in these Terms, (iii) the service term or other timing considerations, (iv) Fees, (v) any applicable limitations on number or type of Authorized Users, and (vi) any other applicable terms and conditions ("Minimum Order Terms").
b) Direct Orders; Reseller Orders. Customer may submit Order Forms directly through sāf.ai (each, a "Direct Order") or through a sāf.ai-authorized reseller ("Authorized Reseller", and such Order Form, a "Reseller Order"). Reseller Orders shall be agreed upon between the Authorized Reseller and Customer, and shall, unless otherwise agreed in writing by sāf.ai, include at least the Minimum Order Terms. Notwithstanding the foregoing, Customer acknowledges that any Reseller Order is subject to sāf.ai's prior approval and agrees that no term in any Reseller Order will be deemed to modify the Agreement unless pre-authorized in writing by sāf.ai.
a) Authorized Users.
i) Selecting Authorized Users. If we have agreed to provide you with Subscription Services, you may select Authorized Users to access and use the Subscription Services, subject to the restrictions set forth below and to any numeric or other limits established in an Order Form or as otherwise agreed to by the parties. You must obtain separate credentials (user IDs and passwords) via the Subscription Services for each Authorized User.
ii) Your Responsibilities Regarding Authorized Users. You shall at all times be responsible for and expressly assume the risks associated with all use of the Subscription Services under an Authorized User's account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (1) taken by sāf.ai or by a party acting under the direction of sāf.ai or (2) an action by a third party that sāf.ai should reasonably have prevented. This responsibility includes the security of each Authorized User's credentials, and you shall not share (and shall instruct each Authorized User not to share) such credentials with any other person or entity, or otherwise permit any other person or entity to access or use the Subscription Services, except to the extent permitted in an Order Form.
b) Provision of the Subscription Services. Subject to your, and your Authorized Users', compliance with the terms and conditions of this Agreement (including payment of any Fees as due under Section 5 (Payment)), sāf.ai will provide you with the Subscription Services, and you and your Authorized Users may access and use the Subscription Services solely for your internal business purposes, unless any other permitted use is set forth in an applicable Order Form. sāf.ai reserves the right to improve or otherwise modify its internal System architecture at any time subject to maintaining appropriate industry standards of practice relating to the provision and security of the Subscription Services, and provided that any such modification does not materially diminish the core functionality of the Subscription Services. As between the parties, you retain all ownership rights in Customer Data, Customer Results and, subject to sāf.ai rights in Usage Data (as defined in Section 3.3(a)), Customer Instructional Input, and any other information or materials you provide to sāf.ai to enable sāf.ai to perform any of the sāf.ai Services. Additionally, to the extent Customer utilizes third party open source libraries within the Customer Instructional Input, the foregoing shall not be read to imply ownership by Customer in such libraries.
c) Shared Responsibility Deployment.
i) Generally. You acknowledge that the Platform Services are implemented in a manner that divides the Platform Services between the Customer Cloud Environment and the sāf.ai Control Plane, and that accordingly each party must undertake certain technical and organizational measures in order to protect the Platform Services and the Customer Content. Without limiting the foregoing, Customer acknowledges and agrees that (1) in order to utilize the Platform Services, Customer must have an account with the Cloud Provider; (2) sāf.ai does not host the Customer Cloud Environment into which the Platform Services are deployed or the Systems in which your Customer Data may be stored (e.g., an AWS S3 bucket); (3) while certain Customer Data may occasionally be present within the Platform Services (e.g., within the Customer Results), the Platform Services are not designed to archive or permanently retain Customer Data, but merely to provide an environment to facilitate Customer's processing of Customer Data within the Customer Cloud Environment by permitting Customer to generate and execute Customer Instructional Input and view Customer Results; and (4) sāf.ai and the Platform Services do not provide backup services or disaster recovery to enable recovery of Customer Data. Accordingly, and without limiting the foregoing, but subject to Section 9.1, sāf.ai is not responsible for any loss, destruction, alteration, or corruption of Customer Content, except to the extent caused by the gross negligence or willful misconduct of sāf.ai or to the extent caused by any third party that sāf.ai should reasonably have prevented from having access.
ii) Customer Responsibilities. Customer acknowledges and agrees that Customer is responsible for (1) protecting the security of all Customer credentials used to access the Subscription Services (with sāf.ai also responsible for taking adequate steps to protect Customer credentials to the extent such credentials are within the control of sāf.ai); (2) securing the Customer Cloud Environment and any Customer System (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access); (3) backing up Customer Instructional Input (e.g., via Github or other third party system); (4) backing up and securing Customer Data under Customer's control within the Customer Cloud Environment or other Customer controlled System (e.g., by turning on versioning and encryption within AWS S3); and (5) any security or other issues resulting from any Customer Instructional Input, and Customer expressly assumes the risks associated with the foregoing responsibilities.
iii) sāf.ai Responsibilities. sāf.ai acknowledges and agrees that, as between the parties and except to the extent caused by the action or intentional or negligent inaction of Customer or Customer's Authorized Users, including without limitation any customizations or configurations of the Platform Services by Customer or anything specified to be Customer's responsibility in (ii), above, sāf.ai is primarily responsible for (1) the operation (excluding to the extent such operation is directed by the Customer Instructional Content) of the sāf.ai Control Plane (including the user interface of the Platform Services and the portion of the Platform Services within the sāf.ai Control Plane in which the Customer Instructional Input and Customer Results are held until deleted by Customer) and the sāf.ai software that operates the computing resources in the Customer Data Plane; and (2) implementing reasonable technical and organizational measures designed in accordance with the ISMS Standard (defined below) to protect the security of the foregoing. Additionally, while it is Customer's responsibility to back up Customer Instructional Input, sāf.ai will, at Customer's reasonable request, provide commercially reasonable assistance with recovery efforts where reasonably possible.
a. Generally. sāf.ai may provide, as set forth in an Order Form, certain Training Services, delivered (i) by instructors ("Instructor-led Training Services"), either in person or online-only; or (ii) as a self-paced online training course ("Self-Paced Training Services"). If we have agreed to provide you with Training Services, we will provide qualified training personnel and/or suitable training materials. You shall make available to sāf.ai any materials sāf.ai reasonably requires to perform the Training Services, but unless agreed between the parties in writing, shall not provide sāf.ai any Customer Data for use with the Training Services.
b. Instructor-led Training Services. If we have agreed to provide you with Instructor-led Training Services, except as otherwise mutually agreed upon by the parties, you shall, as reasonably applicable: (i) provide qualified personnel to assist in coordinating and implementing the Instructor-led Training Services; (ii) provide sāf.ai with access to your sites and facilities (or temporary off-site facilities) during normal business hours and as otherwise reasonably required by sāf.ai to perform the Instructor-led Training Services; (iii) provide sāf.ai with such working space and office support (including access to telephones, photocopying equipment, and the like) as sāf.ai may reasonably request; and (iv) perform your duties and tasks as may be reasonably required to permit sāf.ai to perform the Instructor-led Training Services, including any such duties and tasks that may be set forth in an Order Form.
c. Self-Paced Training Services. sāf.ai may make available certain Self-Paced Training Services. Unless otherwise set forth in an Order Form or when signing up for a Self-Paced Training Service, the Self-Paced Training Services shall expire 12 months from the earlier of purchase or activation and are licensed on a per-user basis.
Professional Services. Terms regarding the delivery of Professional Services, if applicable, shall be set forth in an Order Form.
a. Generally. Subject to the Order Form, sāf.ai will provide Professional Services designed to initiate and/or facilitate your ability to effectively utilize saf.ai platform. Unless otherwise agreed by the parties, Professional Services will expire 1 year after the Start Date indicated on the Order Form and will be booked on the basis of 7.5-hour service days.
b. Expenses. You agree to reimburse sāf.ai for reasonable travel and lodging expenses actually incurred by sāf.ai
c. Intellectual Property.
i. sāf.ai, upon your payment of all fees and charges accruing under the Order Form, grants you a non-exclusive, perpetual, fully paid-up, royalty-free license to use, copy, modify, or create derivative works based on any Professional Services work product delivered hereunder by sāf.ai to you, as may be further described in an SOW (the "Deliverables"). If and to the extent sāf.ai incorporates any sāf.ai Materials (as defined below) into the Deliverables, sāf.ai grants to you a non-exclusive, perpetual, fully paid-up, royalty-free license to use, copy, modify or create derivative works based on such sāf.ai Materials, solely as incorporated into the Deliverables and solely for your internal or external business use as reasonably necessary to use the Deliverables for their intended purposes. For the avoidance of doubt, no part of the Platform Services shall be deemed to be incorporated into the Deliverables.
ii. Subject to your rights in your Confidential Information, sāf.ai will exclusively own all rights, title and interest in and to: (i) the Deliverables; and (ii) any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, training materials, and other materials of any kind used or developed by sāf.ai or its personnel in connection with performing the Professional Services, or any other sāf.ai Services (collectively "sāf.ai Materials"), including all Intellectual Property Rights in any of the foregoing.
iii. Unless otherwise set forth in the Order Form or an SOW, the Deliverables are not subject to any maintenance, support or updates after the termination of the Order Form.
d. Change Order. From time to time, you and sāf.ai may be required to adjust the Professional Services based on technical developments, schedules, fees, or other requirements. Any material changes to an SOW or the Order Form will require a change order executed by both parties prior to the implementation of such changes ("Change Order"). Each Change Order must include the change(s) to the Professional Services and the impact on the time of performance and Fees. Once executed, a Change Order will become part of the SOW and/or Order Form, as applicable.
e. Customer Obligations. You acknowledge that successful delivery of the Professional Services depends on your full and timely cooperation. You agree to make available any reasonably requested personnel and/or information in a timely manner to allow sāf.ai to perform such services.
f. Additional Warranty. sāf.ai warrants that it will perform the Professional Services in a professional and workmanlike manner by qualified personnel and in accordance with generally accepted industry standards. sāf.ai makes no guarantee as to whether the Professional Services will be completed within any specific time frame.
g. Requirements; Limitations. sāf.ai will provide the Professional Services at a mutually agreed location and substantially on a mutually agreed time schedule. sāf.ai will adhere while on Customer's premises with reasonable policies provided by Customer to sāf.ai in writing in advance.
h. Business Relationship. saf.ai's relationship with Customer is that of an independent contractor, and nothing in this Agreement will be construed to create a partnership, agency, joint venture, employment or similar relationship. Neither saf.ai nor any of saf.ai's personnel will be considered Customer's employee or agent under this Agreement or otherwise. Neither Party will have any right to act for, represent or otherwise bind the other Party in any manner, except as expressly authorized by such other Party.
Downloadable Services. sāf.ai may make available to you certain sāf.ai Services as software from time to time in a downloadable manner ("Downloadable Services"). Unless expressly stated otherwise at the time of download or as otherwise agreed by sāf.ai, Downloadable Services may only be used as a part of the sāf.ai Services. You are granted a non-exclusive, royalty-free right and license to use and copy during the term of this Agreement the Downloadable Services solely as necessary to enable your use of the sāf.ai Services.
Beta Services. If you elect to receive any Beta Services offered by sāf.ai, you agree that, in addition to adhering to all other restrictions generally applicable to your use of the Subscription Services under this Agreement and any requirements set forth by sāf.ai in writing regarding the particular Beta Services, you shall not use such Beta Services for production workloads or for any mission critical work, and that you shall not use sensitive data (e.g., PHI or Cardholder Data) in conjunction with such Beta Services unless explicitly permitted in an Order Form.
Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the sāf.ai Services ("Feedback"). If you choose to offer Feedback to sāf.ai, you hereby grant sāf.ai a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the sāf.ai Services or otherwise use any Feedback sāf.ai receives from you. You also irrevocably waive in favor of sāf.ai any moral rights which you may have in such Feedback pursuant to applicable copyright law.
Ownership of the sāf.ai Services. Except as expressly set forth in this Agreement, sāf.ai retains all Intellectual Property Rights and all other proprietary rights related to the sāf.ai Services. You shall not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the sāf.ai Services as delivered to you. You agree that the sāf.ai Services are provided on a non-exclusive basis and that no transfer of ownership of Intellectual Property Rights shall occur. You further acknowledge and agree that portions of the sāf.ai Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of sāf.ai and its licensors.
Compliance with Customer Onsite Access Policies. If in the course of providing Training Services or any other sāf.ai Services, sāf.ai personnel go onsite at Customer's premises, sāf.ai shall require such personnel to comply with Customer's commercially reasonable onsite access policies that have been provided by Customer to such personnel reasonably in advance.
Customer Obligations; Customer Data.
Customer Responsibilities. In addition to the responsibilities set forth in Section 2.2(c), Customer is responsible for ensuring that sāf.ai at all times has updated and accurate contact information for the appropriate person for sāf.ai to notify regarding data security issues relating to the sāf.ai Services, with such contact information to be updated in each Order Form and any subsequent changes to be provided by email to email@example.com (with "Contact Detail Change" in the subject).
Restrictions on Use. You shall not (and shall not permit your Authorized Users to):
a. violate the Acceptable Use Policy;
b. copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the sāf.ai Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition;
c. sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the sāf.ai Services to any third party except to the extent explicitly authorized in writing by sāf.ai;
d. use the sāf.ai Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party's possible subscription to any sāf.ai product or service;
e. transfer or assign any of your rights hereunder except as permitted under Section 12.5; or
f. during any free trial period granted by sāf.ai, including during the use of any Beta Service, use the sāf.ai Services for any purpose other than to evaluate the desirability of entering into a paid subscription to the sāf.ai Services (in which case sāf.ai reserves the right to charge you for such use at sāf.ai's standard rates without foregoing any other available remedies).
Customer Data and Customer Instructional Input.
a. Ownership; Usage Data. As between you and sāf.ai, you retain all ownership rights in Customer Content. Notwithstanding the foregoing, you acknowledge and agree that sāf.ai may collect usage data and telemetry regarding your Authorized Users' use of the Subscription Services and that such usage data may occasionally contain Customer Instructional Input (e.g., it may contain the queries entered by an Authorized User) but will not contain Customer Data or Customer Results ("Usage Data"). sāf.ai will not share or publicly make available any Usage Data that identifies Customer, or any of its Authorized Users, other data subjects, or customers, nor use any Usage Data in a manner that derives its value from the unique aspects of your Customer Instructional Input.
b. PHI Data under HIPAA. You agree that you may not include in Customer Data or Customer Instructional Input, or generate any Customer Results that include, any PHI unless you have entered into (i) an Order Form that explicitly permits you to process PHI within the Platform Services, and then only with respect to the workspace(s) identified in such Order Form (the "PHI Permitted Workspaces"); and (ii) a BAA with sāf.ai which, upon mutual execution, shall be incorporated by reference into and subject to this Agreement. If you have not entered into a BAA with sāf.ai or if you provide PHI to sāf.ai other than through the PHI Permitted Workspaces, sāf.ai will have no liability under this Agreement relating to PHI, notwithstanding anything in this Agreement or in HIPAA or any similar Laws to the contrary.
c. Cardholder Data Under PCI-DSS. You agree that you may not include in Customer Data or Customer Instructional Input, or generate any Customer Results that include, any cardholder data as defined under PCI-DSS ("Cardholder Data") unless you have entered into an Order Form that (i) specifies sāf.ai then-current certification status under PCI-DSS; and (ii) explicitly permits you to process Cardholder Data within the Platform Services (including specifying the types and quantities of such data) and, and then only with respect to the workspace(s) identified in such Order Form (the "PCI Permitted Workspaces"). If you have not entered into such mutually executed Order Form with sāf.ai, or if you provide Cardholder Data to sāf.ai other than through the PCI Permitted Workspaces, sāf.ai will have no liability under this Agreement relating to Cardholder Data, notwithstanding anything in this Agreement or in PCI-DSS or any similar regulations to the contrary.
d. Additional Limitations. You represent and warrant to sāf.ai that your use of sāf.ai Services shall comply with all applicable Laws, including without limitation any Applicable Data Protection Laws, and that, without limiting the foregoing, Customer Data and Customer Instructional Input shall not contain:
i. any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement;
ii. any data with respect to which your use and provision to sāf. ai pursuant to this Agreement would breach any agreement between you and any third party; or
iii. any data with respect to which its usage as contemplated herein would violate any applicable Laws, including without limitation any Applicable Data Protection Laws.
- Term of Agreement. This Agreement shall become effective on the Effective Date and shall continue in full force and effect until terminated by either party pursuant to this Section 4. The Agreement may be terminated by either party without cause on thirty (30) days' prior written notice if (a) there are no operative Order Forms outstanding or (b) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period. If the Agreement terminates pursuant to the prior sentence due to sāf.ai's material breach, sāf.ai will refund to you that portion of any prepayments related to sāf.ai Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
- Term of Order Forms. The Term of an Order Form shall be as specified in the Order Form.
- Monthly PAYG Services. Notwithstanding anything in this Agreement to the contrary, sāf.ai may suspend or terminate any Monthly PAYG Services account, and delete any Customer Content relating to such account that may be stored within the Subscription Services or other sāf.ai's Systems, upon thirty (30) day's prior written notice (email sufficient) if sāf.ai reasonably determines the account is inactive as set forth in the Acceptable Use Policy.
- Suspension; Termination. sāf.ai may temporarily suspend or terminate the sāf.ai Services at any time (a) immediately without notice if sāf.ai reasonably suspects that you have violated Section 3 or your responsibilities set forth in Section 2.2(c) in a manner that may cause material harm or material risk of harm to sāf.ai or to any other party, (b) upon ten (10) business days' notice if sāf.ai reasonably suspects that you have committed any other violation of Section 3 or your responsibilities set forth in Section 2.2(c) or (c) if you or your Responsible Customer (as defined below) fail to pay undisputed Fees after receiving notice that you are more than thirty (30) days delinquent in payment.
- Effects of Termination. Upon termination for any reason, you shall purge all stored elements of the sāf.ai Services from your Systems, sāf.ai will, upon your written request, purge all your Confidential Information from its Systems, and each party, upon request by the other party, shall provide certification of such action. All provisions of the Agreement that by their nature should survive termination shall so survive, including without limitation each party's confidentiality obligations under Section 6.
Payment. Unless Customer's usage of the sāf.ai Services is being paid for by a third party under contract with sāf.ai (such third party, the "Responsible Customer"), Customer shall pay all Fees specified in the applicable Order Form. With respect to Direct Orders, except as otherwise specified therein: (a) all Fees owed to sāf.ai shall be paid in U.S. Dollars; (b) invoiced payments shall be due within 30 days of the date of your receipt of each invoice; and (c) Fees for all sāf.ai Services shall be invoiced in full upon execution of the applicable Order Form. With respect to a Reseller Order, payment terms shall be specified on such Reseller Order, provided that should Customer fail to pay Fees when due to an Authorized Reseller, sāf.ai may seek payment directly from Customer. All past due payments, except to the extent reasonably disputed, shall accrue interest at the highest rate allowed under applicable law but in no event more than one and one-half percent (1.5%) per month. You shall be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes.
Confidentiality; Data Protection.
- Confidentiality. A receiving party will not use the disclosing party's Confidential Information except as permitted under this Agreement or to enforce its rights under this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 6.1. Each receiving party will protect the disclosing party's Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 6.1 shall supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
- Data Protection. sāf.ai is certified as ISO/IEC 27001:2013 compliant as of the Effective Date and shall remain certified to this or an equivalent or greater standard (the "ISMS Standard") throughout the term of this Agreement. sāf.ai will maintain appropriate administrative, physical, and technical safeguards according to the ISMS Standard for protection of the security and confidentiality of Customer Data under sāf.ai's control. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data under sāf.ai's control. Without limiting the foregoing, sāf.ai acknowledges that it may receive or have access to Personal Data provided by your Authorized Users during the term of this Agreement. Except with respect to a free trial, the terms of the DPA are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by sāf.ai, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. Where the Standard Contractual Clauses are applicable according to the DPA, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and Customer's or an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
- Warranties. sāf.ai warrants that, during the term of the Agreement, it will employ appropriate industry standards of practice designed to: (a) ensure that its provision of the sāf.ai Services under this Agreement will not infringe any third party Intellectual Property Rights or other proprietary rights; (b) prevent the transmission of malware or malicious code via the sāf.ai Services; (c) meet its performance, confidentiality and other obligations under this Agreement; (d) prevent unauthorized access to or disclosure of Customer Content; and (e) ensure that the Platform Services operate during the applicable Order Form term(s) substantially in accordance with the Documentation.
- Disclaimer. THE WARRANTIES IN SECTION 7.1 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING SĀF.AI AND SĀF.AI'S SERVICES PROVIDED HEREUNDER. SUBJECT TO SECTION 9.1, SĀF.AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (BUT SUBJECT ALWAYS TO SECTION 9.1): (a) BETA SERVICES AND ANY SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND BY SĀF.AI; (b) WITHOUT LIMITATION, SĀF.AI DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE SĀF.AI SERVICES; (c) SĀF.AI IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE SĀF.AI SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE; AND (d) SĀF.AI'S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER INSTRUCTIONAL INPUT PURSUANT TO SECTION 2.2(c)(iii) SHALL CONSTITUTE SĀF.AI'S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE SĀF.AI SERVICES.
- Indemnification by sāf.ai. Subject to Section 8.5, sāf.ai will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a "Claim Against Customer") alleging that the sāf.ai Services as provided to Customer by sāf.ai or Customer's use of the sāf.ai Services in accordance with the Documentation and this Agreement infringes or misappropriates such party's Intellectual Property Rights (an "IP Claim"), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by sāf.ai in writing of, a Claim Against Customer. Notwithstanding the foregoing, sāf.ai will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (a) any public open source version of any sāf.ai software (located at github.com/safai-labs), if the claim of infringement or misappropriation does not allege with specificity that the infringement or misappropriation arises from the Platform Services (as opposed to saf.ai CEFS or CENC software); (b) the combination, operation or use of the sāf.ai Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by sāf.ai, if a claim would not have occurred but for such combination, operation or use; or (c) your or an Authorized User's use of the sāf.ai Services other than in accordance with the Documentation and this Agreement.
- Injunction. If sāf.ai receives information about an infringement or misappropriation claim related to a sāf.ai Service, then sāf.ai may at its sole option and expense: (a) replace or modify the applicable sāf.ai Services to make them non-infringing and of equivalent functionality; (b) procure for you the right to continue using the sāf.ai Services under the terms of this Agreement; or (c) if sāf.ai is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and sāf.ai's obligation under this Agreement with respect to such sāf.ai Services and refund to you any Fees prepaid by you for sāf.ai Services not yet provided.
- Indemnification by Customer. Subject to Section 8.5, Customer shall defend sāf.ai and its Affiliates and its and each of their officers, employees, directors, and agents (each, a "sāf.ai Indemnitee") against any claim, demand, suit or proceeding made or brought against a sāf.ai Indemnitee by a third party (a "Claim Against sāf.ai") (a) alleging that any Customer Content or its use with the sāf.ai Services infringes or misappropriates such party's Intellectual Property Rights; or (b) arising from or related to Customer's use of the sāf.ai Services in violation of any Law or this Agreement, and shall indemnify each sāf.ai Indemnitee from and against any damages, attorney fees and costs finally awarded against a sāf.ai Indemnitee as a result of, or for amounts paid by a sāf.ai Indemnitee under a settlement approved by Customer in writing of, a Claim Against sāf.ai. Sole Remedy for Infringement of Intellectual Property Rights. SUBJECT TO SECTION 8.5 BELOW, THE FOREGOING SECTIONS 8.1 and 8.2 STATE THE ENTIRE OBLIGATION OF SĀF.AI AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SĀF.AI SERVICES.
- Conditions of Indemnification. As a condition to an indemnifying party's (each, an "Indemnitor") obligations under this Section 8, a party seeking indemnification (each, an "Indemnitee") will: (a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will only relieve Indemnitor of its obligation to indemnify to the extent that it has been prejudiced by the delay); (b) grant the Indemnitor sole control of the defense (including selection of counsel) and settlement of the claim; (c) provide the Indemnitor, at the Indemnitor's expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; (d) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee's prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee's expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor's prior written consent.
Limitation of Liability.
Nothing in this Agreement shall limit either party's liability for the Excluded Claims; or any other liability that cannot be excluded or limited by applicable Laws.
Subject to Section 9.1, neither party nor its Affiliates shall be liable for any:
a. loss of profits or revenue;
b. loss from damage to business or goodwill;
c. loss arising from inaccurate or unexpected results of algorithms submitted by the other party to the sāf.ai Services; or
d. other indirect, incidental, special, punitive, or consequential loss or damages; even if a party has been advised of the possibility of such losses or damages arising
SUBJECT TO SECTION 9.1, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SĀF.AI SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE.
Notwithstanding the previous paragraph, but subject to Section 9.1, any liability relating to sāf.ai Services provided free of charge, including any Beta Services or sāf.ai Services provided during a free trial period, shall be limited to five thousand US dollars (USD $5,000).
Export. The sāf.ai Services, and/or derivatives thereof, may be subject to export Laws of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit your users to access or use any sāf.ai Services in a U.S. embargoed country (as of the Effective Date, Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export Law.
Equitable Relief. Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 6 (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained shall be in addition to, and not foreclose, any other remedies that may be available.
Governing Law and Venue. The governing law and exclusive venue applicable to any lawsuit or other dispute arising in connection with this Agreement shall be determined by the location of Customer's principal place of business ("Domicile"), as follows:
| Customer's Domicile | Governing Law | Venue (courts width exclusive jurisdiction | |:--------------------:|:-------------:|:------------------------------------------:| | North America | Maryland | Maryland (state and U.S. federal courts) | | Europe; South America; Middle East; Africa | | Delaware (state and U.S. federal courts) |
The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts in the venues shown above. In all cases, the application of law shall be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
U.S. Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulation (FAR), Customer acknowledges that the Platform Services constitute software and documentation provided as "Commercial Items" under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed and made accessible to U.S. government users as commercial computer software subject to the restricted rights described in 48 C.F.R. 12.212.
Insurance Coverage. sāf.ai will maintain commercially appropriate insurance coverage given the nature of the sāf.ai Services and sāf.ai's obligations under this Agreement. Such insurance will be in an industry standard form with admitted insurance carriers with A.M. ratings of AM-IX or better, and shall include commercially appropriate cyber liability insurance coverage. Upon Customer's request, sāf.ai will provide to Customer proof evidencing sāf.ai's insurance coverage.
Entire Agreement, Construction, Amendment and Execution. This Agreement (including all Order Forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. Nothing in the preceding sentence shall limit or exclude any liability for fraud or fraudulent misrepresentation. To the extent any provision in an Order Form clearly conflicts with a provision of these Terms or a provision of an earlier Order Form, the provision in the new Order Form shall be binding and the conflicting provision in these Terms or in the earlier Order Form shall be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order Form (unless expressly intended to permanently amend the Agreement). If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be enforced to the maximum extent possible, and the other provisions shall remain in full force and effect. The headings in this Agreement are solely for convenience, and shall not be taken into consideration in interpretation of the Agreement. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, to fully review and understand this Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption shall be given in favor of the non-drafting party. This Agreement may not be modified or amended except by mutual written agreement of the parties. Without limiting the foregoing, no Customer purchase order shall be deemed to modify an Order Form or this Agreement unless expressly pre-authorized in writing by sāf.ai. This Agreement (including all Order Forms) may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. A party's electronic signature or transmission of any document by electronic means shall be deemed to bind such party as if signed and transmitted in physical form.
Assignment. No assignment, novation or transfer of a party's rights and obligations under this Agreement ("Assignment") is permitted except with the prior written approval of the other party, which shall not be unreasonably withheld; provided, however, that either party may freely make an Assignment to a successor in interest upon a change of Control.
Notice. Any required notice under this Agreement shall be deemed given when received by letter delivered by nationally recognized overnight delivery service or recorded prepaid mail. Unless notified in writing of a change of address, you shall send any required notice to sāf.ai, Inc., 7200 Wisconsin Ave. Suite 302, Bethesda, MD 20854, USA, attention: Legal Department, and sāf.ai shall send any required notice to you directed to the most recent address you have provided to sāf.ai for such notice. Notwithstanding the foregoing, notice as required under Section 4.4 may be provided by email sent to a person the party providing notice reasonably believes to have responsibility for the other party's activities under this Agreement.
Force Majeure. Notwithstanding anything herein to the contrary, Customer understands and agrees that its use of the sāf.ai Services may be interrupted by circumstances beyond sāf.ai's reasonable control, including without limitation acts of God, acts of government, changes in law or regulations, acts or omissions of third parties, flood, fire, earthquakes, civil unrest, wars, acts of terror, strikes or other actions taken by labor organizations, computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within sāf.ai's possession or reasonable control, and network intrusions or denial of service attacks, or any other cause, whether similar or dissimilar to any of the foregoing that is beyond sāf.ai's reasonable control (individually or collectively as applicable, "Force Majeure"). sāf.ai shall not be responsible or otherwise liable for any Force Majeure or any consequences thereof.
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By signing below, each party acknowledges that it has read and understood the terms of these Terms of Service and agrees to be bound by them.