a) Grant of Rights. These terms and conditions, including the License and/or Subscription Scope and General Restrictions described below, Daitrix hereby grants Customer a license to: (i) access and use the ML Model; and (ii) display, print and reproduce the documentation to the extent reasonably required to exercise the foregoing rights (such rights collectively, (the “Business Model”). The ML Model may be bundled with or have incorporated within software code owned by and licensed from additional third parties, which may include so-called open-source code (the “Third Party Code”).
b) Scope. The Business Model has a term as specified in the applicable Order (the “Term”) and in Annex A, if applicable. The Business Model will expire at the end of that Term and be restricted to limits outlined in Annex A, unless the parties mutually agree, in writing, to extend usage or renew. Except as otherwise set forth in the applicable Order, the Business Model is for Customer’s internal use only and does not permit Customer to use the ML Model to process accounts or records or to generate output data for the benefit of, or for purposes of rendering services to, any other business entities or organizations including by acting as a service bureau, Software-as-a-Service provider or Application Service Provider. The Business Model is non-exclusive such that Daitrix may grant to others or reserve for its own use, rights that are the same as or similar to those granted to Customer. Each Business Model is personal to Customer and thus is non-transferable, non-assignable and non-sublicensable. Any act or omission in violation of the scope defined by this section (the “Scope”) will be a material breach of this Agreement, which will result in immediate termination of the Business Model. Upon expiration of the Term or termination of the Business Model for any reason, Customer’s access to the ML Model will end immediately and Customer shall within two (2) business days: (i) delete any and all copies of the Software from its systems and (ii) return or destroy any and all Daitrix Confidential Information, in its possession, related to the ML Model.
c) General Restrictions. Customer’s use of the ML Model is for Customer’s internal business purposes only. Customer shall not: (i) modify, distribute, transfer, translate, reverse engineer, decompile, disassemble or create derivative works based on, or improvements of, the ML Model; (ii) copy the ML Model other than as permitted herein and subject to prior written approval by Daitrix, if all copyright and other proprietary or restricted rights notices are reproduced; (iii) rent, lease, grant a security interest in, or otherwise transfer rights to the ML Model; (iv) remove, modify or obscure proprietary rights notices that Daitrix places on the ML Model, its documentation or their packaging; or (v) use the ML Model, or any portion thereof, in a service bureau, time-sharing or outsourcing service or otherwise use the ML Model for the benefit of a third party. Customer is responsible for the observance and proper performance, including acts and omissions, of its employees and any independent contractor, agent, representative or other third party that Customer allows to access or use the ML Model, regardless of whether such usage is permitted under the terms of the Business Model. Customer shall use best efforts to prevent unauthorized access to or use of the ML Model and shall notify Daitrix promptly of any such unauthorized use or access.
d) Export; Transfer Control Laws. The ML Model may be subject to restrictions and controls imposed by the United States Export Administration Act and other applicable transfer control and prohibited persons laws and regulations of the United States and other jurisdictions. Customer shall not export, re-export or otherwise transfer, actually or constructively, the ML Model, or any technology or technical information contained therein: (i) to any country, person, entity or end user that is prohibited by the Transfer Control Laws (as defined below); (ii) in violation of the applicable laws of the destination jurisdiction; and/or (iii) to any jurisdiction that requires disclosure of source code or permits reverse engineering to create human readable source code from object code. In all events, Customer and each of Customer’s parents, subsidiaries and affiliates and all of their respective officers, directors, employees, agents and contractors, in each case including all those who are allowed access to the ML Model or any portion thereof, or to whom export or other transfer of the ML Model or any portion thereof may be made hereunder, whether actual or constructive (collectively, the “Customer Parties”), are not named as a "debarred" party, "denied person or entity," "embargoed entity," or otherwise sanctioned under, or prohibited from engaging in activities subject to any United States laws or the laws of any other applicable country or countries relating to the transfer of technology, including the Export Administration Regulations, the International Traffic in Arms Regulations and the regulations administered by the Office of Foreign Assets Control of the United States Department of the Treasury or other similar laws of any foreign country (collectively, the "Transfer Control Laws"). Customer shall immediately notify Daitrix if any of the Customer Parties are so named, debarred, designated or otherwise sanctioned under, or prohibited from engaging in activities subject to, any of the Transfer Control Laws.
a) Ownership. Customer acknowledges that, as between the parties, Daitrix owns the ML Model(s) and any development, updates, upgrades, new functionality or features, or enhancements thereof and/or the creation of new models which are generated during the provision of services under this Agreement. All right, title and interest in and to the ML Model(s) and any additions or modifications thereto, including without limitation, all copyrights, trade secrets and other intellectual property rights pertaining thereto will remain vested in Daitrix. Customer shall not modify, distribute, transfer, reverse engineer, decompile or disassemble the ML Model(s). Daitrix reserves all rights not expressly granted to Customer hereunder. There are no implied rights. Customer will not alter, remove, modify or suppress any confidentiality legends or proprietary notices placed on or contained within the ML Model(s). Customer owns all of the data used for the ML Model and data output created by the ML Model (“Data”) and such Data is considered Confidential Information as set forth herein.
b) Confidentiality. Each party agrees to maintain in confidence all Confidential Information. “Confidential Information” means, subject to the exclusions set forth in Section 2(c) below, information in any form or medium (whether oral, written, electronic or other) that the discloser considers confidential or proprietary, including information consisting of or relating to the discloser's technology (including source code), trade secrets, know-how, business operations, plans, strategies, customers, pricing information, and information with respect to which the discloser has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Confidential Information includes the terms and conditions of this Agreement and all payment reports delivered pursuant to this Agreement. Each party, as the receiving party, agrees that it shall not use the discloser’s Confidential Information other than as necessary to perform this Agreement or exercise its rights hereunder, and each party further agrees that it shall not disclose or make available the disclosing party’s Confidential Information to any person or entity, except as a necessary part of performing its obligations hereunder, and shall take all reasonable steps to prevent unauthorized disclosure or use of the disclosing party’s Confidential Information and to prevent it from being introduced into the public domain or into the possession of unauthorized persons. The receiving party shall not disclose Confidential Information of the disclosing party to any person or entity other than its employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with the receiving party under terms sufficient to enable the disclosing party to comply with its confidentiality obligations under this Agreement. The receiving party shall immediately give notice to the disclosing party of any unauthorized use or disclosure of disclosing party’s Confidential Information. The disclosing party agrees to assist the other party in remedying the unauthorized use or disclosure of its Confidential Information.
c) Exclusions. Confidential Information shall not include any information that is; (i) already known to the receiving party at the time of the disclosure (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto; or (v) is independently developed by the receiving party without reference to, or use of, the Confidential Information of the disclosing party, which independent development the receiving party shall have the burden of proving. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides as much notice as reasonably practicable, as required by law, court order or government agency, to the other party so that such party has the opportunity to obtain a protective order or otherwise oppose the disclosure or seek protective treatment.
d) Permitted Disclosures. Each party shall restrict access to Confidential Information received from the other party to only those of its employees, officers, directors, representatives, contractors, advisors and sources of financing and capital with a legitimate business need to receive the Confidential Information. Each party is responsible for the observance and proper performance by all of its representatives of the terms and conditions of this Agreement. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. A party may also disclose this Agreement under seal in any litigation concerning this Agreement.
e) Injunctive Relief. Monetary damages may not be an adequate remedy for breach of the obligations set forth herein. In addition to all other remedies, a party may have the right to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other equitable relief, without the need to post bond or other security.
Daitrix does not warrant that the ML Model(s) will meet Customer’s requirements, operate without interruption or be error free. Daitrix makes no warranty with respect to and shall not be responsible under any warranty in any manner for, matters related to causes external to the ML Model(s). DAITRIX PROVIDES THE ML MODEL(S) “AS IS” AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, DAITRIX DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. DAITRIX DOES NOT MAKE ANY WARRANTIES CONCERNING THE THIRD PARTY CODE.
a) By Daitrix. Daitrix will defend any action (or portion thereof) brought against Customer based solely on a claim that an Daitrix ML Model infringes a U.S. patent or copyright or misappropriates the proprietary trade secret of any third party. Daitrix will indemnify Customer against damages awarded against Customer in such actions which are directly attributable to such claim, on condition that Customer is not in breach of this Agreement and that Daitrix is given prompt written notice of such claim, reasonable assistance from Customer, and sole authority to defend or settle the claim. If an Daitrix ML Model becomes, or in Daitrix’s sole opinion is likely to become, the subject of a claim of infringement, Daitrix may, at its option, procure for Customer the right to continue to use the ML Model, replace or modify the ML Model to make it non-infringing, or discontinue sales and marketing of the ML Model if deemed necessary. Daitrix will have no liability for any claim based on (i) any modification of the ML Model, except with respect to modifications performed by Daitrix; or (ii) any use of the ML Model other than as provided in this Agreement. This Section 4 sets forth Daitrix’s complete liability with respect to infringement of intellectual property rights.
b) By Customer. Customer will, at its expense, indemnify, defend, and hold harmless Daitrix, its affiliates and their respective officers, directors, shareholders and representatives against all liabilities, obligations, losses, costs, damages and other expenses and attorneys' fees relating to claims arising from Customer’s own breaches, negligent (or more culpable) acts or omissions, or misrepresentations, provided Daitrix gives Customer prompt written notice of such claim, reasonable assistance (at Customer’s expense) and sole authority to defend and such claim.
5. Limitation on Liability.
a) Exclusion of Damages. EXCEPT WITH RESPECT TO A BREACH OF SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES , INCLUDING LOST PROFITS, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Notwithstanding the foregoing, except for breaches of confidentiality and indemnification, Customer acknowledges that in the event that Customer materially breaches this Agreement, Customer shall pay Daitrix, as liquidated damages a total amount of two (2) times the Fees paid by the Customer annually or $500,000 whatever is the least amount of the two. The provisions of the preceding sentence state Daitrix’s exclusive remedy for such breach but do not limit Customer’s obligation to pay Fees, if applicable. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and Customer shall pay them to Daitrix without limiting Daitrix’s right to terminate this Agreement for default as provided elsewhere herein.
b) Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF DAITRIX FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE ML MODEL UNDER THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER TO DAITRIX UNDER THE AFFECTED ML MODEL DURING THE CONTRACT YEAR IN WHICH THE CLAIM FIRST AROSE. “CONTRACT YEAR” MEANS EACH TWELVE (12)-MONTH PERIOD FOLLOWING THE EFFECTIVE DATE AND EACH ANNIVERSARY THEREOF.
6. Arbitration.
a) Any dispute, claim or controversy 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 agreement to arbitrate, shall be determined by arbitration in Delaware, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This Section shall not preclude parties from seeking from a court of competent jurisdiction provisional remedies in aid of arbitration or to protect a party’s proprietary rights. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
7. Compliance with Laws.
a) Each party agrees to comply with any and all laws, rules, and regulations that with respect to a party are applicable to such party in the operation of its business. Customer warrants that in the performance of its obligations under this Agreement, it shall not act in any fashion or take any action which will render Daitrix liable for a violation of the U.S. Foreign Corrupt Practices Act, U.K. Anti-Bribery Act and any other international anti-corruption laws and regulations.
8. Choice of Law.
a) The laws of the State of Delaware (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement.
9. Miscellaneous
a) Publicity. Neither party shall publicize the relationship of the parties, use the proprietary marks of the other party, or use any photos, statements, employee statements and names, and other images of the other party in any manner, including, but not limited to, marketing communication, website, videos, and/or public relations activities for any purpose. Notwithstanding the foregoing, Daitrix may include Customer’s name on its written customer lists (e.g., brochures, proposals, promotional advertisements and mailings) distributed to the general public, and on its website; provided, however, that no endorsement by Customer of Daitrix or its business offerings, is expressed or implied. Customer may withdraw its consent herein by sending an email to legal@Daitrix.com.
b) Data Security. Daitrix shall implement, maintain and apply, at its cost and expense, the technical and organizational security measures necessary for the proper handling of Data regarding this Agreement. Customer is responsible for the security of Data when it is on-site at the Customer’s facility and when it is within Customer’s control and oversight.
c) Article headings are used for convenience of reference only. This Agreement may be modified from time to time by Daitrix and the current version of the Agreement will be posted at https://www.daitrix.com/terms-and-conditions. The waiver by either party of any default or breach shall not constitute a waiver of any other or subsequent default or breach.
