Master Service Agreement
This AIBE Master Service Agreement is entered into by and between the AIBE Inc., a Delaware corporation (“AIBE”) and the customer (“Customer”) identified in an Order Form that references this Agreement and is effective as of the date the Order Form is signed by Customer (“Effective Date”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, THEN YOU MUST NOT ACCEPT THIS AGREEMENT.
As used herein, references to the “Agreement” means this AIBE Master Service Agreement, all Order Forms hereunder, hyperlinked policies, terms, and addenda, subsequent amendments, and such other attachments and exhibits that the parties’ authorized representatives mutually agree to in writing. In the event of any conflict or inconsistency between the terms of any Order Form and the body of this Agreement, the Order Form will control solely to the extent of the conflict or inconsistency.
Definitions
“AI Tool” means the AI-powered features and tools within the Service.
“Authorized User” means any person or affiliate of Customer for whom Customer has created an account to access and use the Platform (which may include employees, contractors, or third-party service providers).
“Customer Data” means the data, information, and other materials transmitted to or through the Platform by Customer or Authorized Users. Customer Data excludes Feedback and Platform Diagnostic Data.
“Feedback” means feedback, analysis, suggestions and/or comments related to the Service.
“Fee(s)” means the fees paid for access to the Service, including subscription fees and one-time purchases.
“Input” means text, images, videos, or other prompts entered by an Authorized User into an AI Tool.
“Licensed Content” means the Reports and other content made available on the Service by AIBE to Customer.
“Order Form” means AIBE’s standard order form that (i) specifies the Service or products purchased by Customer.
“Output” means text, images, videos, or other content generated and returned by the AI Tools based on the Input provided by an Authorized User.
“Platform” means AIBE’s software-as-a-service product made available to Customer.
“Platform Diagnostic Data” means data regarding use of the Service and the Platform’s performance that is aggregated and de-identified such that it cannot identify Customer, any third-party entity, or any natural persons.
“Reports” means certain reports, materials, and other content generated by the Platform at the direction of Customer.
“Service” means the service offering(s) provided by AIBE as set forth in the Order Form(s), including any updates thereto, as may be available online, via mobile application, or other forms.
“Third-Party Services” means any applications, products, websites, and services not provided by AIBE that may be used by Customer in conjunction with the Service.
Agreement and Rights
Scope of Agreement; Precedent. This Agreement governs Customer’s and its Authorized User’s use of the Service. The Service that AIBE is to provide to Customer is described in one or more Order Form(s) and may include use of the Platform. This Agreement hereby incorporates by reference any such Order Form(s).
Use of Service. Subject to the terms and conditions of this Agreement, AIBE hereby grants to Customer during the Term a non-exclusive, non-transferable (except pursuant to Section 13.10 (Assignment) below) and non-sublicensable license to allow the Authorized User to access and use the Service for Customer’s internal business purposes.
Customer Obligations. Customer is solely responsible for: (i) providing all hardware, software, networking, and communications capabilities necessary for Customer’s access to the Service; (ii) all activities conducted by each of its Authorized Users and each Authorized User’s compliance with the terms of this Agreement; (iii) the accuracy, quality, integrity, and legality of Customer Data and the means by which it acquired Customer Data and the contents thereof. Customer represents and warrants that it has provided all legally required disclosures and obtained all legally required consents from individuals prior to adding such individuals as an Authorized User.
Account Registration and Credentials. Customer must provide accurate and complete information to register for an account to use the Service. Customer shall be responsible for ensuring that each Authorized User has unique login credentials and that each Authorized User keeps their login credentials confidential. Customer will notify AIBE promptly in the event Customer becomes aware of any unauthorized use of login credentials.
Intellectual Property Rights. Except as expressly set forth in this Agreement, all intellectual property rights in and to the Service and Licensed Content remain the sole property of AIBE and its third-party licensors. AIBE owns or has legal rights to all content, data, software, inventions, ideas, and other technology and intellectual property that it develops in connection with its products and the Service. For the avoidance of doubt, AIBE is not the owner of Output generated by any AI Tools except to the extent that it has intellectual property rights in the content used in the generation of such Output.
Acceptable Use. Customer may not use the Service to directly or indirectly discriminate against others, especially when based on a lawfully protected status (e.g., race, religion, sex, sexual orientation, age, disability, ancestry, or national origin). Customer is not permitted to use the Service in a manner which would or would likely incite, promote, or support such discrimination. If AIBE, in its sole determination, believes that Customer’s use of the Service is being used to discriminate, especially if based on lawfully protected status, AIBE may permanently or temporarily terminate or suspend Customer’s and/or any Authorized User’s access to the Service without notice and liability for any reason.
Restrictions. Customer and Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying Authorized User interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell, or otherwise use the Service for the benefit of any third party or provide any third party except for Authorized Users with access to the Service; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Service in a manner that violates this Agreement, any third-party rights, or any applicable laws, rules or regulations; (vii) access the Service to build a competitive product or service, or copy any ideas, features, functions, or graphics of the Service; or (viii) remove or destroy any copyright notices or other proprietary markings contained on or in the Service or Licensed Content. Customer acknowledges and agrees that it is responsible for the use or misuse of the Service by Authorized Users. Any action taken or breach of this Agreement by an Authorized User will be deemed an action taken or a breach of this Agreement by Customer. Without limiting the foregoing, Customer is responsible for the proper care and use of Customer’s and Authorized Users’ access credentials and any actions resulting from the use of Customer’s or its Authorized Users’ login credentials.
Suspension or Termination of Service. AIBE may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to and use of the Service without incurring any resulting obligation or liability, if: (i) AIBE receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires AIBE to do so; or (ii) AIBE believes, in its good faith and reasonable discretion, that: (a) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Service or Licensed Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (b) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Service or Licensed Materials; or (c) this Agreement expires or is terminated. This section does not limit any of AIBE's other rights or remedies, whether at law, in equity, or under this Agreement.
Trial Periods. AIBE may make the Service available to Customer for evaluation purposes free of charge until the earlier of (i) the end of the free trial period as stated on the Order Form; (ii) the start of any purchased access to the Service through an Order Form; or (iii) termination by AIBE in AIBE’s sole discretion (the “Trial Period”).
Trial Period Disclaimers. Notwithstanding Section 9 (Warranties and Disclaimers), during the Trial Period the Service is offered “as is,” AND AIBE MAKES NO PROMISES, REPRESENTATIONS, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, AND AIBE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. Notwithstanding anything to the contrary in this Agreement, AIBE shall have no indemnity obligations to Customer during the Trial Period.
Content and Materials
Customer Data; License. Customer represents and warrants to AIBE that Customer owns all rights, title, and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in Customer Data as may be necessary to permit the access, use, and distribution thereof as contemplated by this Agreement. As between AIBE and Customer, Customer owns all right, title, and interest in and to Customer Data. Customer hereby grants to AIBE a non-exclusive and non-transferable (except pursuant to Section 13.10 (Assignment) below) license to host, copy, process, and transmit Customer Data solely to provide and improve the Service.
AI Content. In the course of using the Platform, Customer and Authorized Users may provide Input to the AI Tools and receive Output. Customer is solely responsible for its and its Authorized Users’ Inputs, Outputs, and use thereof. As between Customer and AIBE, to the extent permitted by law and subject to the terms of the Agreement, Customer owns its Input and Output and gives AIBE the right to host and use its Input and Output on the Service. Customer’s and Authorized User’s use of AI Tools and features is subject to the AI-Tools Usage Terms.
Licensed Content. As between AIBE and Customer, AIBE and its licensors have and retain all right, title, and interest, including all intellectual property rights, in and to the Service and the Licensed Content. Customer may use Licensed Content in connection with the Service for its internal business purposes.
Third-Party Content. Licensed Content provided to Customer may be gathered from third-party websites, content licensors, and other external sources (collectively, "Third-Party Content Providers"). AIBE does not create, endorse, or assume responsibility for the accuracy, completeness, legality, reliability, or availability of any content from these Third-Party Content Providers. Any summaries, descriptions, or other information provided about third-party content are for summary purposes only and may not provide a complete or fully accurate description of the content or its relevance. AIBE expressly disclaims any obligation to verify or update such summaries or descriptions. Customer acknowledges and agrees that the use of any content provided by Third-Party Content Providers is at the Customer's sole risk, and AIBE shall not be liable for any errors, omissions, inaccuracies, or any actions taken in reliance on such content. Customer is solely responsible for evaluating the content and for complying with any applicable terms of use or restrictions imposed by the Third-Party Content Providers. Customer also acknowledges that AIBE has no obligation to evaluate, screen, or analyze third-party content prior to display. Furthermore, AIBE has the right to remove any Licensed Content displayed or provided to Customer through the Service at any time in its sole discretion.
Feedback. Customer hereby grants AIBE a perpetual and irrevocable right to use and exploit Feedback without restriction, compensation, or attribution..
Training and Support. AIBE may provide commercially reasonable training and support in connection with the Service, in its sole discretion. Any such training or support may be available via email to [INSERT EMAIL ADDRESS]. AIBE will respond to requests for training or support only from the Authorized Users.
Security and Data Privacy
Information Security. AIBE shall maintain reasonable and appropriate technical and organizational measure to maintain the security of the Service and Customer Data while in the possession of AIBE.
Data Privacy. To the extent Customer Personal Data subject to the Data Protection Laws (as those terms are defined in the Data Processing Addendum) is processed by AIBE on Customer’s behalf in connection with Customer’s use of the Service, AIBE's Data Processing Addendum (INSERT URL TO DPA) (as may be updated from time to time) is hereby incorporated by reference.
Fees
Fees. Customer will pay AIBE the fees set forth in the Order Form (“Fees”). All Fees will be due and payable upon receipt of the applicable invoice issued by AIBE. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer’s unpaid invoices are referred to an attorney or collections agency, Customer shall pay all reasonable costs of collections, including attorney’s fees or collections agency fees actually incurred by AIBE. All Fees shall be payable in USD unless agreed separately in an Order Form.
Automatic Renewal. Unless otherwise specified in an Order Form, Customer’s subscription Term will automatically renew at AIBE’s then-current rates for: (i) if Customer’s prior subscription was for a period less than twelve (12) months, another Term of a period equal to Customer’s prior Term, or (ii) if Customer’s prior Term was for twelve (12) months or more, twelve (12) months. Either party may elect not to renew a Term by giving notice to the other party before the end of the current Term. Customer must provide any notice of non-renewal through account settings in the Service or by otherwise providing notice consistent with this Agreement.
Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the rights and benefits it receives under this Agreement. If Customer is compelled to make any deduction of Taxes, it will pay to AIBE such additional amounts as are necessary to ensure receipt by AIBE of the full amount that AIBE would have received but for the deduction. If AIBE has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6.3, then AIBE will invoice Customer and Customer will pay that amount unless Customer provides AIBE with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AIBE is solely responsible for Taxes assessable against AIBE based on its net income, property, and employees.
Confidentiality
Confidential Information. “Confidential Information” means any all code, inventions, know-how, and business, technical, and financial information disclosed by one party (“Discloser”) to the other party (“Recipient”) that is identified as confidential at the time of disclosure or should be reasonably understood by Recipient to be confidential under the circumstances. Feedback regarding AIBE products or services will not be considered Customer’s Confidential Information.
Non-Use and Non-Disclosure. The Recipient shall, with respect to Confidential Information of the Discloser: (i) not disclose such Confidential Information to any third party at any time and limit disclosure to its employees, contractors, or its legal, financial, and accounting advisors that have a need to know and who have agreed to be bound by confidentiality obligations that are at least as restrictive as the terms of this Agreement; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Notwithstanding the foregoing, Recipient may disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or a government body, provided that Recipient must give Discloser prompt written notice and obtain or allow for a reasonable effort by Discloser to obtain a protective order prior to disclosure.
Exclusions. The obligations with respect to Confidential Information shall not apply with respect to Confidential Information Recipient can demonstrate: (i) is now or becomes publicly available through no fault of Recipient; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to Recipient without obligation of confidentiality prior to such disclosure; or (iv) is, at any time, independently developed by Recipient without use of Discloser’s Confidential Information.
Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient the Discloser will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
Term and Termination
Term. This Agreement will commence on the date that Customer first enters into an Order Form and continue until all Order Forms have expired or are terminated according to their terms (the “Term”).
Termination for Cause. Either party may terminate this Agreement upon thirty (30) days’ prior written notice if the other party is in material breach of this Agreement and the breaching party fails to remedy the breach within such thirty (30) day notice period.
Termination for Convenience. Customer may choose to stop using the Service and terminate this Agreement (including all Order Forms) at any time for any reason upon written notice to AIBE, but, upon any such termination (i) Customer will not be entitled to a refund of any pre-paid fees and (ii) if Customer has not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
Effects of Termination. Upon expiration or termination of this Agreement for any reason, the licenses granted to Customer in Section 2.2 (Use of Service) will automatically terminate and all Fees owed pursuant to Section 6 (Fees) will become immediately due and payable. Any usage by Customer of the Service specified in an Order Form beyond the expiration or termination of such Order Form shall be (i) paid for by Customer at AIBE’s standard monthly fees for such Service and (ii) subject to the terms of this Agreement. Any such continued Service after expiration of an Order Form shall not affect AIBE’s right to discontinue or terminate the Service at any time post-expiration.
Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 2.7 (Restrictions), 2.8 (Suspension or Termination of Service); Section 3.1 (Customer Data; License) 3.3 (Licensed Content); 3.4 (Third-Party Content); 3.5 (Feedback); Section 6 (Fees); Section 7 (Confidentiality); Section 8.5 (Survival), Section 9 (Warranties and Disclaimers), Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 12 (Dispute Resolution), and Section 13 (Miscellaneous Provisions).
Warranties and Disclaimers
Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (ii) it has the right, power, and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of the party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
AIBE. AIBE represents and warrants that it will use commercially reasonable efforts to make the Service available at all times during the Term, except for planned downtime.
Customer. Customer represents and warrants that: (i) it owns or otherwise has sufficient rights to the Customer Data to grant the license set forth in Section 3.1 (Customer Data; License); (ii) the posting and use of Customer Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity, and Customer will not upload any Customer Data to the Platform that contains any sensitive or special categories of information as defined in Data Protection Laws; (iii) the upload, posting, or other submission of Customer Data to the Platform does not and will not result in a breach of contract between Customer and any third party; and (iv) it will not knowingly collect personally identifiable information from children under thirteen (13) when using the Service. Customer’s responsibilities as set forth in this Section and this Agreement will remain the sole responsibility and liability of Customer notwithstanding that AIBE may offer guidance or suggestions relating to any of the matters that are Customer’s responsibility and notwithstanding that AIBE may be engaged to provide services related to such responsibilities of Customer.
WARRANTY DISCLAIMER. ALL SERVICE, SUPPORT, AND ADD-ON SERVICES ARE PROVIDED “AS IS,” AND AIBE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING AIBE’S EXPRESS OBLIGATIONS IN THIS AGREEMENT, AIBE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT AIBE WILL REVIEW CUSTOMER DATA FOR ACCURACY OR THAT AIBE WILL PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICE NECESSARILY INVOLVES TRANSMISSION OF CUSTOMER DATA OVER NETWORKS THAT AIBE DOES NOT OWN, OPERATE, OR CONTROL, AND AIBE IS NOT RESPONSIBLE FOR ANY CUSTOMER DATA LOST, ALTERED, INTERCEPTED, OR STORED ACROSS SUCH NETWORKS. AIBE CANNOT GUARANTEE THAT AIBE’S SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF CUSTOMER DATA WILL ALWAYS BE SECURE, OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT AIBE’S SECURITY MEASURES OR THOSE OF ITS THIRD-PARTY SERVICE PROVIDERS. AIBE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE AIBE’S REASONABLE CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 11 (INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES), (I) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES THAT CUSTOMER HAS PAID TO AIBE DURING THE TERM; AND (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA, OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. This Section 10 will not apply to any actual or alleged infringement by Customer or any Authorized User of AIBE’s intellectual property or other proprietary rights.
Indemnification
Customer. If a third party asserts a claim, or any proceeding, investigation, or inquiry is initiated by a regulator (each, a “Third-Party Claim”) against AIBE, its affiliates or any of their respective affiliates, officers, employees, or contractors (each, an “AIBE Released Party”) arising out of or in connection with any (i) use of the Service by Customer or any Authorized User in violation of this Agreement; (ii) breach by Customer of Customer’s representations or warranties contained herein, including Section 9.3 (Customer); or (iii) Customer Data uploaded or transmitted to or through the Service or generated by the Service by Customer or an Authorized User; then, in each case, Customer will indemnify and defend each AIBE Released Party from the Third-Party Claim and hold such parties harmless from all penalties, losses, liabilities, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, consultants’ fees, court costs, and damages finally awarded or costs of settlements entered into with respect to the Third-Party Claim. This Section 11.1 states Customer’s entire and sole liability for Third-Party Claims.
AIBE. If a Third-Party Claim is asserted against Customer or any of its affiliates, officers, employees, or contractors (each, a “Customer Released Party”) alleging that the Platform infringes such third party’s patent rights, then AIBE will indemnify and defend the Customer Released Party from the Third-Party Claim and hold such party harmless from any damages finally awarded or costs of settlements entered into with respect to the Third-Party Claim. In the event of an infringement claim, AIBE, at its sole option and expense, may: (a) procure for Customer the right to continue using the Platform or infringing part thereof; (b) modify or amend the Platform or infringing part thereof; (c) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (d) if the foregoing are not commercially practicable, terminate this Agreement and repay to Customer a pro-rata portion of the Fees. Notwithstanding the foregoing sentences of this Section 11.2, AIBE will have no liability for a Third-Party Claim to the extent it arises out of or results from (A) any breach of this Agreement by Customer or any Authorized User; (B) any modification, alteration, or addition made to the Platform by Customer or any Authorized User, including any combination of the Platform with software not provided by AIBE; or (C) any Customer Data. This Section 11.2 states AIBE’s entire and sole liability with respect to Third-Party Claims.
Procedure. The party seeking indemnity under this Section 11 (“Indemnified Party”) will provide the other party (“Indemnifying Party”) with prompt written notice of any claim for which the Indemnified Party seeks an indemnity, provided that failure to provide such notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was materially prejudiced by such failure. The Indemnifying Party shall, at its own expense, defend the Indemnified Party using legal counsel reasonably acceptable to the Indemnified Party. The Indemnified Party will reasonably cooperate in the defense of any such claim, at the Indemnifying Party’s sole expense. The Indemnifying Party will have the sole authority to settle a claim, provided that it may not settle any claim against the Indemnified Party without the Indemnified Party’s prior express written consent, which may not be unreasonably withheld, conditioned, or delayed, unless such settlement consists solely of monetary damages for which the Indemnifying Party is responsible hereunder. The Indemnified Party may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if the Indemnified Party reasonably determines that the Indemnifying Party is unwilling or unable to defend the Indemnified Party’s interests, then the Indemnified Party may assume the defense against any claims at the Indemnifying Party’s sole expense.
Dispute Resolution
Customer agrees to the following mandatory arbitration and class action waiver provisions:
Informal Dispute Resolution. Customer and AIBE agree to resolve any claims arising out of or relating to this Agreement or the Service, regardless of when the claim arose, even if it was before this Agreement existed (a “Dispute”), by first engaging in informal dispute resolution. Before either party files a claim against the other, both parties agree to try to resolve the Dispute informally by sending notice to the other party using the notice mechanism described in this Agreement. If Customer’s notice mechanism is not specified, notice of a Dispute will be sent to the email address associated with Customer’s administrator account. If the parties are unable to resolve a Dispute within sixty (60) days, either party has the right to initiate arbitration. Any statute of limitations will be tolled during this informal resolution process. All negotiations pursuant to this Section 12.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
Arbitration Forum. Both Customer or AIBE may commence binding arbitration through JAMS, or, if not available, Customer and AIBE will select an alternative arbitral forum. The initiating party must pay all filing fees for the arbitration and payment for other administrative and arbitrator’s costs will be governed by the arbitration provider’s rules.
Arbitration Procedures. The arbitration will be conducted by telephone, based on written submissions, video conference, or in person in Los Angeles, California or at another mutually agreed location. The arbitration will be conducted by a sole arbitrator by JAMS under its then-prevailing Comprehensive Arbitration Rules. All issues are for the arbitrator to decide, except a California court has the authority to determine (a) whether any provision of this arbitration agreement should be severed and the consequences of said severance, (b) whether Customer has complied with conditions precedent to arbitration, and (c) whether an arbitration provider is available to hear the arbitration(s) under Section 12.2. The arbitrator is not empowered to award punitive or exemplary damages, except as may be required by statute, or any pre-award interest. The arbitrator shall issue a reasoned final award. A final award rendered in connection with arbitration pursuant to this section shall be binding upon the parties, and if fully satisfied within thirty (30) days of being issued, no party may seek to confirm the final award. If a final award is not fully satisfied within thirty (30) days, then a party may apply to have judgment upon such an award entered and enforced in any court of competent jurisdiction. The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.
Exceptions. Nothing in this Agreement requires arbitration of the following claims: (a) individual claims brought in small claims court; and (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Service or intellectual property infringement. Each party acknowledges that irreparable harm could result in the event of a breach or threatened breach of such provisions of this Agreement.
NO CLASS ACTIONS. Disputes must be brought on an individual basis only and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a Dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either party from participating in a class-wide settlement of claims.
Severability. If any part of this Section 12 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this Section 12 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of that claim from the arbitrator.
Miscellaneous Provisions
Headings. Headings in this Agreement are inserted solely for convenience and are not intended to affect the meaning or interpretation of this Agreement.
Electronic Records and Signature. The parties agree that an electronic signature is the legal equivalent of a manual signature on the Agreement, and that, if applicable, selecting a button or other mechanism indicating consent to this Agreement constitutes Customer’s electronic signature.
Entire Agreement. The Agreement is the entire agreement between Customer and AIBE with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications, and understandings, whether written or oral. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty that is not set out in the Agreement. To the extent there is any conflict or inconsistency between this Agreement and any Order Form, the Order Form will prevail to the extent of such conflict or inconsistency. Additional terms or conditions proposed by Customer are hereby expressly excluded.
Relationship of the Parties. For all purposes under this Agreement, Customer and AIBE will be and act as an independent contractor and will not bind nor attempt to bind the other to any contract.
Third-Party Interactions. Customer’s use of any third-party products, packages, or services that are not provided by AIBE which link to the Service, or which are enabled in conjunction with the Service (“Third-Party Interactions”) shall be at Customer’s choice and sole discretion. To the extent Customer decides to use Third-Party Interactions, Customer’s access and use of such Third-Party Interactions shall be governed solely by the terms and conditions of such Third-Party Interactions as between Customer and the third party. In the event Customer enables, installs, connects, or provides access to any Third-Party Interactions for use with the Service, Customer (i) permits the transmission of Customer Data to such Third-Party Interactions at Customer’s direction; (ii) permits such Third-Party Interactions to access the Customer Data at Customer’s direction; and (iii) will provide notice to AIBE of any transmission of Customer Data and provide notice to AIBE of the identity of such third party (unless notice is provided in connection with an API call). AIBE does not license, support, control, endorse, or otherwise make any representations or warranties regarding any Third-Party Interactions, notwithstanding that AIBE may have identified such Third-Party Interactions that Customer subsequently decided to use, and notwithstanding that Customer has directed AIBE to implement or configure such Third-Party Interactions on Customer’s behalf.
No Third-Party Beneficiaries. There are no intended third-party beneficiaries to this Agreement, and it is the parties’ specific intent that nothing contained in this Agreement will give rise to any right or cause of action, contractual or otherwise, in or on behalf of any third party.
Injunctive Relief. Customer agrees that any violation or threatened violation of this Agreement may cause irreparable injury to AIBE, entitling AIBE to seek injunctive relief in addition to all legal remedies.
Force Majeure. Except for payment obligations, neither Customer nor AIBE will have any liability for failures or delays resulting from conditions beyond Customer’s or AIBE’s reasonable control, including but not limited to governmental action or acts of terrorism, earthquakes or other acts of God, labor conditions, or power failures.
Assignment. This Agreement cannot be assigned other than as permitted under this Section 13.10 (Assignment). AIBE may assign this Agreement to an affiliate without notice or Customer’s consent. Both Customer and AIBE may assign this Agreement to a successor to substantially all the respective party’s assets or business, provided that the assigning party provides reasonable (at least thirty (30) days’) prior written notice of the assignment. This Agreement will be binding upon the parties and their respective successors and permitted assigns.
Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Specifically, Customer covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from AIBE under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
Notices. All notices will be in writing. AIBE may provide Customer notice using the registration information or the email address associated with Customer’s account. Service will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. The official address identified for AIBE is [INSERT NOTICE ADDRESS].
Marketing. AIBE may use Customer’s name and logo in both print and electronic media to identify Customer as an AIBE customer.
Severability. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
Jurisdiction, Venue, and Choice of Law. This Agreement will be governed by the laws of the State of California, excluding California’s conflicts of law rules or principles. Except as provided in Section 12 (Dispute Resolution), all claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts of Orange County, California, USA.
AIBE Data Processing Addendum
This Data Processing Addendum (“DPA”) amends and is made part of the Agreement by and between the customer identified in the Agreement (“Customer”) and AIBE. Capitalized terms used but not defined in this DPA have the meaning given to them in the Agreement or Data Protection Laws.
Personal Data. Pursuant to the Agreement, AIBE provides the Service for or on behalf of Customer, which may require AIBE to process Personal Data. Customer acknowledges that, as between Customer and AIBE, Customer is the controller of the Personal Data provided to or collected by AIBE on Customer’s behalf pursuant to the Agreement and shall take all steps necessary to ensure that it has all necessary authority to enable AIBE to use the Personal Data to provide the Service and process (as that term is defined by Data Protection Laws) Personal Data consistent with Data Protection Law, the Agreement, and this DPA, including without limitation timely providing AIBE all instructions for AIBE’s processing as may be required by Data Protection Law. As used herein, “Personal Data” means “personal information,” “personally identifiable information,” “personal data,” or other such similar terms as used by laws and regulations that are applicable to the processing of Personal Data by AIBE on Customer’s behalf under the Agreement (“Data Protection Laws”), including but not limited to the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”), the Colorado Privacy Act, Connecticut’s Act Concerning Personal Data Privacy and Online Monitoring, the Montana Consumer Data Privacy Act,, the Oregon Consumer Privacy Act, the Texas Data Privacy and Security Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act, and any implementing regulations thereunder, in each case applicable to this DPA as and when legally effective. For the avoidance of doubt, Personal Data does not include personal data or information for which Customer is not the controller or for which AIBE is an independent controller.
Processing Instructions. AIBE is permitted to process Personal Data solely for purposes of providing the Service and to carry out the business purposes under the Agreement, or as otherwise required or permitted by Data Protection Law of a service provider/processor, or as agreed to or instructed by Customer. For the avoidance of doubt, AIBE is a “service provider” as that term is defined in the CCPA.
Processing Restrictions. Without limiting the generality of the foregoing, except as otherwise permitted by the forgoing sentence, AIBE is prohibited from: (a) Selling or Sharing Personal Data; (b) retaining, using, disclosing, or otherwise processing Personal Data for any purpose other than for the specific purpose of providing Service to Customer and to carry out the business purposes relevant to the Agreement; (c) retaining, using, or disclosing Personal Data for any commercial purpose other than to provide the Service and to carry out the business purposes under the Agreement; (d) retaining, using, disclosing, or processing Personal Data outside of the direct business relationship between Customer and AIBE; and (e) combining Personal Data received from or on behalf of Customer with personal data it receives from, or on behalf of, another person(s), or collects from its own interaction with a consumer, except where expressly required to perform the Service.
Obligations. AIBE will, with respect to the Service and Personal Data,:
comply with Data Protection Laws in the provision of the Service, reasonably assist Customer in meeting its obligations under Data Protection Laws, and make available to Customer information in AIBE’s possession necessary to demonstrate its compliance with its obligations under Data Protection Laws upon Customer’s reasonable request;
ensure the reasonable security of Customer Personal Data including by: (i) providing the level of privacy protection to Personal Data as is required by Data Protection Laws and (ii) ensuring each person processing Personal Data is subject to a duty of confidentiality with respect to such Personal Data;
notify Customer within the time period required by Data Protection Laws if it determines it can no longer meet its obligations under Data Protection Laws and allow Customer to take reasonable and appropriate steps to stop and remediate unauthorized processing of Personal Data;
provide reasonable assistance to enable Customer to fulfill privacy rights requests (“PRRs”), including but not limited to notifying AIBE’s subcontractors to delete Customer-specified Personal Data in response to a PRR made to Customer. Customer shall inform AIBE of PRRs that it needs AIBE’s assistance to comply with and shall provide AIBE with information necessary to assist Customer to comply with such PRRs;
if AIBE receives a PRR from a Consumer that might relate to Personal Data it shall respond that it cannot act upon requests made to it as to data it processes as a Service Provider/Processor. If the request specifically identifies Customer in connection with the PRR, AIBE shall inform Customer of such request;
notify Customer of security incidents affecting AIBE’s processing of Personal Data that require notification to data subjects and/or government authorities under Data Protection Laws (“Breach”) and provide reasonable assistance and information regarding such Breach;
provide Customer information to reasonably enable it to conduct and document data protection assessments;
delete Personal Data at the end of the provision of Service, or as otherwise instructed by Customer, unless retention is (i) required by Data Protection Laws; or (ii) part of backup or record keeping, so long as only used for such purposes and only for as long as reasonably necessary, subject to Data Protection Laws and this DPA; and
not more than once annually, and upon request of Customer, provide assurance that AIBE has used the Personal Data it has collected pursuant to the Agreement in a manner consistent with Customer’s and AIBE’s obligations under Data Protection Laws. Customer’s rights under this subsection are limited to receiving information from AIBE and do not include a right to conduct reviews, scans, audits, Customer- or third-party assessments, or other technical or operational testing, unless specifically required by Data Protection Laws.
Sub-Processors. Customer hereby authorizes AIBE to engage third-party entities to process Personal Data on behalf of and as specifically directed by AIBE pursuant to a written contract that includes obligations that are at least as protective as those set out in this DPA and as required by Data Protection Laws.
Privacy Notice. Customer agrees it will provide and abide by an appropriate consumer-facing privacy policy and any other privacy notice as required to comply with Data Protection Laws. Customer’s privacy policy shall provide notice of the processing of Personal Data as contemplated by the Service.
AI Tools Usage Terms
These terms apply to Customer’s and Authorized Users’ use of AI Tools. AIBE reserve the right to update these terms from time to time.
Restrictions. Customer and Authorized Users are prohibited from using AI Tools for any of the following:
Providing misleading content or information (including misleading anyone that content generated from the AI Tools is human-generated or not machine-generated);
Providing advice or opinions which the Customer or Authorized User is not qualified to render, e.g., medical, legal, or financial advice or opinions.
Generating spam, ransomware, keyloggers, viruses, or other software;
Generating nudity or shocking content including obscene gestures, bodily fluids, or other profane subjects;
Implementing fully automated decision-making;
Engaging in activities which would otherwise violate applicable laws or the property or civil rights of any person;
Submitting, disclosing, collecting, gathering, inferring, or otherwise processing sensitive personal data (including but not limited to data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, health data, or data concerning an individual’s sex life or sexual orientation).
Customer Responsibility. Customer and Authorized Users are responsible Input as well as the resulting Output. Customer may use Output for any legal purpose, provided that such use complies with the Agreement. Customer’s use of any Output is at its own risk.
Disclaimer. The Output produced by the AI Tools is generated through artificial intelligence and has not been independently verified by AIBE. The Output does not reflect AIBE’s views or opinions. AIBE offers no warranty or assurance regarding the accuracy, completeness, or reliability of the Output, and assumes no liability or responsibility for any use of the Output by Customer, nor for any errors or omissions it may contain. AIBE advises Customer to seek professional, independent advice before acting on any information or relying on the accuracy of the Output. If any of Customer’s Input or Output is alleged to be unlawful or in violation of the Agreement or these terms, Customer acknowledges that AIBE may disclose such content to law enforcement, governmental authorities, or in response to a legal order.
AI Technology Providers. Some AI Tools are provided by third-party service providers. Customer acknowledges that any Input provided, including any Personal Data included within that Input, will be shared with third-party service providers engaged to enable functionality within the Service. By using the AI Tools, Customer directs and consents to Personal Data Customer includes in an Input being transferred to third parties, including OpenAI, LLC in the United States, which depending on where the consumer to whom the Personal Data relates resides, may not provide the same level of protection for the Personal Data. AIBE’s third-party service provider may also use Customer data to improve their services. This may include any Personal Data Customer chooses to include within such Input, and Customer acknowledge that the third-party service providers’ privacy policy applies to the handling of such Personal Data.