These Evaluation Terms of Service (this “Agreement”) govern Customer’s access to and use of the Platform during the Term for the Evaluation Purpose only. This Agreement is entered into between Flux Cap. Corporation, a Delaware corporation (“Provider” or “Flux”), and the entity identified in the applicable Evaluation Order Form (“Customer”). By executing an Evaluation Order Form, otherwise commencing use of the Platform for evaluation purposes, or authorizing any Authorized User to do so, Customer agrees to be bound by this Agreement. If Customer does not agree to these terms, Customer must not access or use the Platform. This Agreement replaces and supersedes any prior beta testing license agreement or evaluation access agreement between the parties. The following documents, as posted on Provider’s website and updated from time to time, are hereby incorporated into and form part of this Agreement by reference: (a) the Security Addendum; (b) the Data Processing Addendum (the “DPA”); and (c) the Privacy Policy (collectively with this Agreement, the “Terms”). In the event of any conflict between the DPA and this Agreement with respect to the Processing of Personal Data, the DPA shall control.
1.DEFINITIONS
As used in this Agreement, the following terms have the meanings set forth below:
1.1“Authorized Users” means Customer’s own employees and authorized contractors who have a legitimate need to access the Platform for the Evaluation Purpose and who are bound by written confidentiality and use restrictions no less protective than those set forth in this Agreement.
1.2“Confidential Information” means any and all information disclosed by Provider to Customer in connection with this Agreement, whether disclosed orally, in writing, electronically, or by any other means, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation: the Platform and all features, functionality, architecture, source code, and performance characteristics thereof; all pre-release and beta software, unreleased product roadmaps, technical data, trade secrets, pricing information, and any other Provider IP, the terms of any Evaluation Order Form, and the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly available without breach of any obligation owed to Provider; (b) was known to Customer without restriction before disclosure and without breach of any obligation owed to Provider, as evidenced by contemporaneous written records; (c) is rightfully received by Customer from a third party without restriction on disclosure and without breach of any obligation owed to Provider; or (d) is independently developed by Customer without use of or reference to Provider’s Confidential Information or breach of any obligation owed to Provider.
1.3“Effective Date” means the earlier of the effective date of the Evaluation Order Form and the date on which Customer first commences use of the Platform for evaluation purposes.
1.4“Evaluation Order Form” means an Order Form executed by both parties that references this Agreement and specifies Customer’s use of the Platform for evaluation purposes.
1.5“Evaluation Purpose” means Customer’s internal, non-commercial assessment and evaluation of the Platform’s functionality, features, and suitability for potential future commercial use, solely for Customer’s own internal business evaluation activities. The Evaluation Purpose expressly excludes: (a) any production, commercial, or revenue-generating use; (b) any use on behalf of a client, customer, or third party; (c) processing of live, production, or client matter data; and (d) any benchmarking or competitive analysis activities.
1.6“Feedback” means any and all suggestions, ideas, enhancement requests, recommendations, comments, bug reports, error reports, observations, improvement recommendations, or other feedback provided by or on behalf of Customer or any Authorized Users regarding the Platform; provided that Feedback shall not include any of Customer’s proprietary information or trade secrets that Customer has designated in writing as excluded from this definition prior to disclosure.
1.7“Losses” means any and all claims, demands, actions, proceedings, damages, liabilities, losses, costs, and expenses of any nature whatsoever, including, without limitation, reasonable attorneys’ fees, court costs, and disbursements, whether arising in contract, tort (including negligence), statute, or otherwise.
1.8“Outputs” means all results, analyses, summaries, reports, documents, responses, and other content generated by the Platform in response to or in connection with inputs submitted by or on behalf of Customer.
1.9“Platform” means Provider’s proprietary AI-powered technology platform and software-as-a-service environment, including all underlying artificial intelligence and machine learning models, algorithms, APIs, interfaces, databases, infrastructure, and related tools and functionality made available by Provider under this Agreement, as updated or modified by Provider from time to time.
1.10“Provider IP” means all intellectual property owned or controlled by Provider, including, without limitation: (a) the Platform and all underlying technology, algorithms, models, training data, software and documentation; (b) all improvements, derivative works, methodologies, frameworks, and tools developed by Provider; (c) all Feedback; (d) all Usage Data; and (e) any modifications and derivative works of the foregoing.
1.11“Term” means the period commencing on the Effective Date and continuing for the period set forth in the Evaluation Order Form, unless earlier terminated in accordance with Section 9 or extended by the mutual written agreement of the parties.
1.12“Usage Data” means metadata, telemetry, log data, performance metrics, aggregated usage statistics, interaction data, and other technical data generated by or in connection with Customer’s access to and use of the Platform during the Term, excluding any information that constitute Customer’s proprietary trade secrets.
2.EVALUATION LICENSE
2.1License Grant. Subject to the terms and conditions of this Agreement and the Evaluation Order Form, Provider grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform solely for the Evaluation Purpose during the Term, solely by and through Customer’s Authorized Users in accordance with this Agreement and the applicable Evaluation Order Form. No other rights are granted. All rights not expressly granted herein are reserved to Provider. The evaluation license granted hereunder is provided free of charge and without consideration, and Provider’s provision of access does not create any obligation on Provider’s part to continue providing access, to enter into any commercial agreement, or to provide any level of service.
2.2Evaluation Purpose Only. Customer shall use the Platform exclusively for the Evaluation Purpose. Without limiting the foregoing, Customer shall not: (a) use the Platform in any production environment or for any live, revenue-generating, or commercially operational purpose; (b) use the Platform to process any confidential client information, privileged communications, attorney work product, or any data subject to third-party confidentiality obligations, unless Customer has obtained all required authorizations and consents and has disclosed such use to Provider in writing; (c) use the Platform on behalf of any client, customer, or third party, or allow any third party to benefit from the evaluation access without Provider’s prior written consent; or (d) represent to any third party that the Platform is production-ready or generally available for commercial use, or make any representations regarding the Platform's fitness for any production or commercial purpose based on Customer’s evaluation experience.
2.3No Technical Support. Provider has no obligation under this Agreement to provide Customer with any technical support, maintenance, updates, error corrections, bug fixes, patches, documentation, training, or other services of any kind. Any assistance Provider may elect to provide during the Term is provided in Provider’s sole discretion, does not create any obligation to continue providing such assistance, and shall not be construed as a commitment to provide support under any future commercial agreement. Customer evaluates and uses the Platform entirely at its own risk.
2.4Pre-Release Acknowledgment. Customer acknowledges and agrees that: (a) the Platform made available during the Term may be a pre-release, beta, or otherwise incomplete version of the Platform and may contain errors, bugs, defects, inaccuracies, or incomplete functionality; (b) Provider makes no representation or warranty that the evaluation version of the Platform is representative of any final, commercial, or generally available version of the Platform; (c) Provider reserves the right to modify, update, discontinue, or remove any feature or functionality of the Platform at any time during or after the Term without notice and without liability to Customer; and (d) Provider provides no backward compatibility guarantee with respect to any feature, API, data format, interface, or functionality made available during the Term, and any commercial version of the Platform may differ materially from the evaluation version.
3.RESTRICTIONS
3.1Incorporation of Platform Agreement Restrictions. Customer shall comply, and shall ensure that its Authorized Users comply, with the restrictions set forth in Section 3.5 (Restrictions) of the Platform Agreement, which is incorporated into this Agreement by reference and applies to Customer's evaluation access as if fully set forth herein. References in Section 3.5 of the Platform Agreement to “Customer” shall be read as references to Customer under this Agreement, and references to “this Agreement” shall be read as references to this Agreement as applied to Customer’s evaluation access.
3.2Additional Evaluation-Specific Restrictions. In addition to the restrictions incorporated pursuant to Section 3.1, Customer shall not, and shall ensure that its Authorized Users do not, directly or indirectly: (a) allow the Platform to be used on a rental, time-sharing, or subscription basis or pursuant to a service-bureau arrangement; (b) introduce or upload any business records, litigation or claims notes, or materials subject to attorney-client privilege, work-product protection, or any other applicable litigation privilege or protection; or (c) use the Platform or any Outputs to provide legal advice or other licensed professional services to any third party, whether or not such third party is a client or prospective client of Customer.
3.3Conflict. In the event of any conflict between the restrictions set forth in this Section 3 and the restrictions set forth in Section 3.5 of the Platform Agreement, the more restrictive provision shall control.
4.INTELLECTUAL PROPERTY
4.1Provider IP. Provider and its licensors own and shall retain all right, title, and interest in and to the Platform and all components thereof, including without limitation: (a) all underlying artificial intelligence and machine learning models, algorithms, model weights, training methodologies, embeddings, and inference pipelines; (b) all software, source code, object code, APIs, interfaces, databases, and infrastructure; (c) all Outputs generated by the Platform; (d) Usage Data and all data derived therefrom; (e) all documentation, training materials, user guides, and technical specifications; (f) all improvements, modifications, updates, and derivative works of the Platform or any component thereof, whether created by Provider alone, by Customer alone, or jointly; and (g) all patents, copyrights, trademarks, trade secrets, and other intellectual property rights subsisting in any of the foregoing. No license, right, or interest in any Provider intellectual property is granted to Customer except the limited evaluation license expressly set forth in Section 2.1. All rights not expressly granted herein are reserved to Provider.
4.2Output Ownership. All Outputs generated during the Term are and shall remain the sole and exclusive property of Provider. Customer shall acquire no right, title, or interest in or to any Outputs by virtue of this Agreement or Customer’s evaluation access. Provider hereby grants Customer a limited, non-exclusive, non-transferable, revocable license to use Outputs solely during the Term and solely for the Evaluation Purpose. This license terminates automatically upon expiration or termination of the Term, and Customer shall thereafter have no right to retain, use, or exploit any Outputs.
4.3Feedback Assignment. Customer hereby irrevocably assigns to Provider all right, title, and interest in and to any Feedback provided by Customer or any of its Authorized Users during the Term, including without limitation all patent rights, copyrights, trade secrets, and other intellectual property rights subsisting therein. Provider shall be free to use, exploit, disclose, reproduce, and commercialize Feedback for any purpose, including without limitation to improve, develop, or market the Platform or any other product or service, without restriction, attribution, or compensation to Customer. To the extent any assignment of Feedback is unenforceable under applicable law, Customer hereby grants to Provider an irrevocable, perpetual, worldwide, royalty-free, exclusive license (with the right to sublicense) to use such Feedback for any purpose. Customer hereby waives, and shall cause all of its Authorized Users to waive, any moral rights or rights of attribution with respect to Feedback to the fullest extent permitted by applicable law.
4.4Usage Data. Customer hereby assigns to Provider all right, title, and interest in and to all Usage Data generated during the Term. Provider shall have the unrestricted right to collect, use, process, analyze, retain, and disclose Usage Data for any lawful purpose, including, without limitation, operating, maintaining, improving, developing, and marketing the Platform and Provider’s other products and services.
5.CONFIDENTIALITY
5.1Provider Confidential Information. Customer acknowledges that all information relating to the Platform disclosed to Customer in connection with this Agreement constitutes Confidential Information of Provider, including without limitation: the Platform’s features, functionality, performance characteristics, architecture, underlying technology, training methodology, model capabilities and limitations, product roadmap, pre-release features, and all non-public information about the Platform regardless of whether marked as confidential. Customer’s obligations with respect to Provider’s Confidential Information under this Section 5 are ongoing and shall not be excused by Customer’s belief that the information is generally known or available.
5.2Customer’s Obligations. Customer shall: (i) hold Provider’s Confidential Information in strict confidence using the highest degree of care Customer uses to protect its own most sensitive confidential information, but in no event less than reasonable care; (ii) not disclose Provider’s Confidential Information to any third party, including affiliates, for any reason without Provider's prior written consent; (iii) use Provider’s Confidential Information solely for the Evaluation Purpose; (iv) limit access to Provider’s Confidential Information to Customer’s personnel who have a strict need-to-know for evaluation purposes and who are individually bound by written confidentiality obligations no less protective than those herein; and (v) promptly notify Provider in writing upon discovering any actual or suspected unauthorized disclosure of Provider's Confidential Information. Customer’s obligations under this Section shall not apply to the extent that specific information is required to be disclosed by applicable law, regulation, or court order, provided that Customer: (i) provides Provider with prompt prior written notice to the extent permitted by law; (ii) cooperates with Provider, at Provider’s expense, in seeking a protective order or other appropriate relief; and (iii) discloses only the minimum amount necessary to comply with such requirement.
5.3Provider’s Obligations. Provider’s confidentiality obligations with respect to Customer’s information are limited to: (i) not disclosing to third parties the specific data or content submitted by Customer to the Platform (“Customer Data”) in identifiable form; and (ii) using Customer Data solely to operate the Platform and fulfill Provider’s obligations under this Agreement. Provider shall have no confidentiality obligation with respect to Feedback, Usage Data, Outputs, or any other information assigned to Provider under Section 4.
5.4Return and Destruction Upon Termination. Upon expiration or termination of the Term for any reason, Customer shall promptly, and in any event within five (5) business days: (a) cease all use of the Platform and all Confidential Information of Provider; (b) return to Provider or, at Provider’s election, certify the permanent destruction of all tangible and electronic materials containing or embodying Provider's Confidential Information, including all copies, extracts, and summaries thereof; and (c) certify such return or destruction in writing to Provider within that five (5)-business-day period. Customer’s confidentiality obligations under this Section 5 shall survive termination or expiration of this Agreement for a period of five (5) years, provided that obligations with respect to trade secrets shall survive indefinitely.
6.REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6.1Customer Representations. Customer represents and warrants to Provider as of the date of acceptance of this Agreement and throughout the Term that: (a) if Customer is an entity, it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, and has full corporate power and authority to enter into and perform its obligations under this Agreement; (b) the acceptance and performance of this Agreement does not and will not conflict with or violate any applicable law, regulation, court order, or agreement to which Customer is a party or by which Customer is bound; (c) Customer has all necessary rights, licenses, and authorizations with respect to any data or content Customer submits to the Platform, and such submission does not infringe any third-party intellectual property right or violate any applicable law or third-party confidentiality obligation; (d) this Agreement constitutes Customer’s legal, valid, and binding obligation, enforceable against it in accordance with its terms; and (e) Customer shall use the Platform solely in compliance with all applicable federal, state, and local laws and regulations, including all applicable professional conduct rules, data protection laws, and export control regulations.
6.2DISCLAIMERS. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. PROVIDER AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM DEALING OR USAGE OF TRADE. THE PLATFORM IS PRE-RELEASE SOFTWARE. IT MAY CONTAIN BUGS, ERRORS, DEFECTS, INCOMPLETE FUNCTIONALITY, AND OTHER ISSUES. PROVIDER MAKES NO WARRANTY THAT THE PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE EVALUATION VERSION IS REPRESENTATIVE OF ANY FUTURE COMMERCIAL PRODUCT. THE PLATFORM AND ANY OUTPUTS DO NOT CONSTITUTE LEGAL ADVICE. OUTPUTS ARE NOT LEGAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL LEGAL, BUSINESS, AND OTHER DETERMINATIONS AND CONCLUSIONS DRAWN FROM EVALUATION OF THE PLATFORM OR USE OF ANY OUTPUTS. AI-GENERATED OUTPUTS MAY CONTAIN ERRORS, INACCURACIES, HALLUCINATIONS, OR OMISSIONS. PROVIDER MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR SUITABILITY OF ANY OUTPUT FOR ANY PURPOSE. CUSTOMER USES OUTPUTS ENTIRELY AT ITS OWN RISK. PROVIDER RESERVES THE RIGHT TO DISCONTINUE OR SUBSTANTIALLY MODIFY ANY FEATURE OR FUNCTIONALITY OF THE PLATFORM AT ANY TIME AND WITHOUT NOTICE. PROVIDER MAKES NO COMMITMENT REGARDING THE FUTURE AVAILABILITY OF ANY SPECIFIC FEATURE, FUNCTIONALITY, INTERFACE, OR DATA FORMAT, AND MAKES NO BACKWARD COMPATIBILITY GUARANTEE OF ANY KIND WITH RESPECT TO THE EVALUATION VERSION OF THE PLATFORM. PROVIDER MAKES NO REPRESENTATION OR WARRANTY THAT THE PLATFORM OR CUSTOMER’S EVALUATION RESULTS WILL MEET CUSTOMER’S REQUIREMENTS, EXPECTATIONS, OR SPECIFICATIONS, OR THAT THE PLATFORM WILL BE SUITABLE FOR ANY PARTICULAR PURPOSE OR APPLICATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ANY PROVIDER REPRESENTATIVE SHALL CREATE ANY WARRANTY. PROVIDER HAS NO OBLIGATION TO MONITOR LEGAL DEVELOPMENTS, UPDATE ANALYSES, OR PROVIDE ONGOING RECOMMENDATIONS. PROVIDER MAY USE THIRD-PARTY MODELS OR COMPONENTS. CUSTOMER ACKNOWLEDGES THAT: (A) MODEL BEHAVIOR MAY CHANGE OVER TIME; (B) PROVIDER IS NOT RESPONSIBLE FOR THIRD-PARTY MODEL BEHAVIOR; AND (C) PROVIDER MAY UPDATE OR REPLACE MODELS WITHOUT NOTICE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO REQUIRE OR PERMIT PROVIDER TO ENGAGE IN CONDUCT PROHIBITED BY NEW YORK RULE OF PROFESSIONAL CONDUCT 5.4(A) OR ANY SIMILAR RULE IN ANY JURISDICTION.
7.INDEMNIFICATION
Customer shall defend, indemnify, and hold harmless Provider and its officers, directors, employees, contractors, licensors, successors, and assigns (collectively, “Provider Indemnitees”) from and against any and all Losses arising out of or relating to: (a) any breach by Customer or its personnel of this Agreement; (b) any claim by a third party arising from or relating to any data or content submitted by Customer to the Platform, including without limitation any claim that such data or content infringes or misappropriates any third-party intellectual property right, violates any third-party confidentiality obligation, or violates any applicable law; (c) Customer’s violation of any applicable law, regulation, or rule of professional conduct in connection with Customer's use of or access to the Platform; or (d) any unauthorized disclosure by Customer or its personnel of Provider's Confidential Information, including without limitation the Platform's pre-release features, functionality, or performance characteristics.
8.LIMITATION OF LIABILITY
8.1Liability Cap. IN NO EVENT SHALL PROVIDER'S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE PLATFORM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED, EXCEED ONE THOUSAND DOLLARS (US $1,000). CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES GIVEN THAT ACCESS TO THE PLATFORM IS PROVIDED FREE OF CHARGE FOR EVALUATION PURPOSES ONLY, AND THAT PROVIDER WOULD NOT PROVIDE EVALUATION ACCESS ABSENT THIS LIMITATION.
8.2EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL PROVIDER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CUSTOMER'S USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED.
8.3Basis of Bargain. Customer acknowledges that the limitations of liability set forth in this Section 8 are a fundamental element of the basis of the bargain between the parties, that Provider would not have provided evaluation access to Customer absent such limitations, and that such limitations shall apply notwithstanding any failure of essential purpose of any limited remedy set forth in this Agreement.
8.4Exclusive Liability Regime. Notwithstanding any provision of the DPA, Security Addendum, or any other incorporated document (including any Evaluation Order Form) to the contrary, the limitation of liability set forth in this Section 8 is the exclusive limitation of liability applicable to this Agreement and to Provider’s processing of Customer Data, Personal Data, or privileged materials during the Term. The liability cap, data breach cap, and other liability provisions of the Platform Agreement do not apply to this Agreement. In the event of any conflict between the liability provisions of this Agreement and the liability provisions of any incorporated document, this Agreement controls.
9.TERM AND TERMINATION
9.1Term; Auto-Termination. This Agreement, the evaluation license granted hereunder, and the applicable Evaluation Order Form shall become effective upon the Effective Date and shall automatically terminate, without notice, upon expiration of the Term.
9.2Early Termination. Either party may terminate this Agreement and Customer’s evaluation access at any time, for any reason or no reason, upon written notice to the other party. Provider may terminate immediately and without notice if Provider reasonably determines that Customer has breached any restriction in Section 3 or any confidentiality obligation in Section 5, or if continued provision of access would expose Provider to legal, regulatory, or reputational risk in Provider’s reasonable judgment. Termination shall be effective upon delivery of written notice, or immediately in the case of Provider’s termination for breach.
9.3Effect of Termination or Expiration. Upon termination or expiration of this Agreement for any reason: (a) all rights and licenses granted to Customer under this Agreement shall immediately and automatically terminate; (b) Customer shall immediately cease all access to and use of the Platform; (c) Customer shall comply with its obligations to return or destroy Confidential Information as set forth in Section 5.4; and (d) Provider may, in its sole discretion, immediately disable Customer’s access credentials and delete any data submitted by Customer to the Platform.
9.4Conversion to Commercial Agreement. If Customer wishes to continue accessing or using the Platform beyond the Term, the parties may enter into a Platform Agreement and applicable Order Form governing such commercial access. No right to continued access to the Platform exists upon expiration or termination of the Term. Commencement of a commercial engagement shall be governed solely by the terms of the Platform Agreement and applicable Order Form and is subject to Provider’s standard commercial terms, pricing, and approval processes. Nothing in this Agreement obligates Provider to offer Customer a commercial agreement or to do so on any particular terms.
9.5Survival. The following provisions shall survive termination or expiration of this Agreement and the Evaluation Order Form for any reason: Section 1 (Definitions, solely to the extent necessary to interpret surviving provisions); Section 2.2 (Evaluation Purpose Only, with respect to Outputs and data retained prior to termination); Section 3 (Restrictions); Section 4 (Intellectual Property); Section 5 (Confidentiality); Section 6.2 (Disclaimers); Section 7 (Indemnification); Section 8 (Limitation of Liability); Section 9.3 (Effect of Termination); this Section 9.5; Section 10 (Governing Law and Dispute Resolution); and Section 11 (Miscellaneous, excluding provisions inapplicable after termination by their nature).
10.DISPUTE RESOLUTION
10.1Governing Law. This Agreement and all claims arising out of or relating hereto, whether sounding in contract, tort, statute, or otherwise, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws principles or choice of law rules that would cause the application of the laws of any other jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction of the federal and state courts located in New York County, New York, for any dispute that is not subject to arbitration pursuant to Section 10.2, and waive any objection to venue in such courts. This Agreement is a “qualifying contract” within the meaning of New York General Obligations Law § 5-1401, and is subject to the mandatory jurisdiction provisions of New York General Obligations Law § 5-1402, to the extent applicable.
10.2Arbitration. Except as provided below, any and all disputes, claims, or controversies arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this arbitration agreement, shall be resolved by final and binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect (the “JAMS Rules”). The arbitration shall be conducted before a sole arbitrator selected in accordance with the JAMS Rules. The arbitration shall be conducted in the English language and shall take place in New York, New York, unless the parties agree in writing to an alternative location or format. This arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Judgment on any arbitration award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either party may seek emergency injunctive or equitable relief in any court of competent jurisdiction to prevent irreparable harm pending resolution of a dispute by arbitration.
10.3JURY TRIAL WAIVER. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF.
10.4Prevailing Party. In any arbitration or litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys’ fees, costs, and disbursements incurred in connection with such proceeding, in addition to any other relief to which such party may be entitled. For purposes of this Section, “prevailing party” shall be determined by the arbitrator or court in its reasonable discretion.
10.5Equitable Relief. Customer acknowledges that a breach of its obligations under Section 3 (Restrictions), Section 4 (Intellectual Property) or Section 5 (Confidentiality) would cause irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, Provider shall be entitled to seek injunctive relief, specific performance, or other equitable remedies without the necessity of posting bond or proving actual damages.
11.MISCELLANEOUS
11.1Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without Provider’s prior written consent. Provider may assign this Agreement without Customer’s consent (i) in its entirety to any affiliate or (ii) in connection with a merger, acquisition, reorganization, or sale of all or substantially all of Provider’s assets or business. Any purported assignment by Customer in violation of this Section shall be null and void.
11.2Notices. All notices, requests, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed delivered: (a) when delivered by hand with written confirmation; (b) one business day after deposit with a nationally recognized overnight courier for next-business-day delivery; or (c) upon confirmed electronic transmission to the email address(es) specified in the applicable Evaluation Order Form. Either party may update its notice information by providing written notice to the other party.
11.3Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, or if such modification is not possible, shall be severed from this Agreement, and the remaining provisions shall continue in full force and effect.
11.4Entire Agreement. This Agreement, together with all Evaluation Order Forms, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, agreements, and understandings, whether written or oral, between the parties relating to such subject matter. No representation, warranty, or agreement not expressly contained in this Agreement shall be binding on either party.
11.5No Agency or Representation. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, franchise, or employment relationship between the parties. Neither party shall have the authority to bind the other party or to incur any obligation on the other party’s behalf. Provider is not an agent, representative, or advocate of Customer in any legal proceeding. Customer hereby waives any claim that Provider acted as Customer’s representative before any court, tribunal, regulator, or governmental authority.
11.6No Waiver. No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude any other or further exercise thereof or the exercise of any other right. All waivers must be in writing and signed by an authorized representative of the waiving party to be effective.
11.7Amendments. Except as expressly provided below, no amendment or modification of this Agreement shall be binding unless made in writing and signed by authorized representatives of both parties. Provider may update these Evaluation Terms of Service at any time by posting a revised version, and Customer’s continued access to the Platform following notice of any update constitutes Customer’s acceptance of the updated terms.
11.8No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the parties hereto and their permitted successors and assigns. Nothing in this Agreement, express or implied, shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.9Export Controls. Customer shall comply with all applicable export control, economic sanctions, and trade compliance laws and regulations in connection with its use of the Platform. Customer represents that it is not located in, under the control of, or a national or resident of any country subject to U.S. trade embargo or on any U.S. Government list of prohibited or restricted parties.