These Terms of Service (this "Agreement") is entered into by and between Nineteenth Street Labs, Inc., a Delaware corporation., which operates as Modelbit ("Modelbit"), and the entity or person accessing the Modelbit Services ("Customer" or "you"). This Agreement consists of the terms and conditions set forth below and any Order Forms that reference this Agreement. If you are accessing or using the Modelbit Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" reference your company.
Please note that Modelbit may modify the terms and conditions of this Agreement in accordance with Section 9.4 (Amendment; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE MODELBIT SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE MODELBIT SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1.1 The following terms, when used in this Agreement will have the following meanings:
"Affiliates" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.
"Confidential Information" means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
"Documentation" means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Modelbit for the Modelbit Service.
"Modelbit Service" means Modelbit's software-as-a-service platform for machine learning model deployment.
"Order Form" means any Modelbit order form, online sign-up, or subscription sign-up flow that references this Agreement.
2.1 Account Registration. Customer may need to register for a Modelbit account in order to use the Modelbit Service. Account information must be accurate, current, and complete. Customer agrees to keep this information up-to-date so that Modelbit may send notices, statements, and other information by email or through Customer's account. Customer must ensure that any user IDs, passwords, and other access credentials for the Modelbit Service are kept strictly confidential and not shared with any unauthorized person.
2.2 Access to Modelbit Service. Subject to the terms and conditions of this Agreement, Modelbit hereby grants Customer a non-exclusive, non-transferrable, non-sublicensable right to access and use the Modelbit Service set forth in the corresponding Order Form for its internal business purposes.
2.3 Customer Limitations. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Modelbit Service; (b) attempt to probe, scan or test the vulnerability of the Modelbit Service, breach the security or authentication measures of the Modelbit Service without proper authorization or willfully render any part of the Modelbit Service unusable; (c) use or access the Modelbit Service to develop a product or service that is competitive with Modelbit's products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Modelbit Service or otherwise offer the Modelbit Service on a standalone basis; or (e) otherwise use the Modelbit Service in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form (collectively, the "License Restrictions").
2.4 Customer Responsibilities. Customer will (i) be responsible for all use of the Modelbit Service under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Modelbit Service and notify Modelbit promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Modelbit Service and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Modelbit Service, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Modelbit will have no liability for such failure (including under any service level agreement).
2.5 Beta Releases and Free Access Subscriptions. Modelbit may provide Customer with the Modelbit Service for free or on a trial basis (a "Free Access Subscriptions") or with "alpha", "beta", or other early-stage Modelbit Services, integrations, or features ("Beta Releases"), which are optional for Customer to use. Modelbit makes no promises that future versions of Beta Releases or Free Access Subscriptions will be released or will be made available under the same commercial or other terms. Modelbit may terminate Customer's right to use any Free Access Subscriptions or Beta Releases at any time in Modelbit's sole discretion, without liability. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH MODELBIT WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER'S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
2.6 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Modelbit and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form
3.1 Fees. To the extent the Modelbit Service is made available for a fee, Customer will pay Modelbit for amounts as set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
3.2 Credit Card Payment Terms. If Customer elects to pay via credit card, then Customer is responsible for either (a) enabling auto-recharge on Customer's payment instrument or (b) ensuring that Customer's payment instrument has a sufficient positive balance to cover all fees due. If, for any reason, Customer has a negative balance on its payment account, then Modelbit reserves the right to suspend access to the paid version until all fees are paid in full.
3.3 Invoicing Payment Terms. If Customer elect to receive invoices and Modelbit approves Customer for the same, then invoices will be sent to via email in accordance with the Order Form. Except as otherwise set forth in an Order Form, Customer will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice.
3.4 Suspension; Late Payment. Modelbit may suspend access to the Modelbit Service immediately upon notice if Customer fails to pay any amounts hereunder at thirty (30) days past the applicable due date. If Modelbit has not received payment within thirty (30) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Modelbit.
3.5 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Modelbit. Customer will not withhold any taxes from any amounts due to Modelbit.
4.1 Customer Data. Customer shall retain all right, title and interest to all data and information provided to Modelbit in connection with its use of the Modelbit Service ("Customer Data"). Modelbit will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Modelbit to use the same as contemplated hereunder.
4.2 Proprietary Rights. As between the parties, Modelbit exclusively owns all right, title and interest in and to the Modelbit Service, System Data and Modelbit's Confidential Information. "System Data" means data collected by Modelbit regarding the Modelbit Service that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Modelbit Service.
4.3 Feedback. Customer may from time to time provide Modelbit suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Modelbit Service. Modelbit will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Modelbit will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.4 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party's prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.1 Performance Warranty. If Customer is using the Modelbit Service through a paid subscription, Modelbit warrants that the Modelbit Service will conform in all material respects with the Documentation. In the event of a breach of the foregoing warranty, Modelbit will use commercially reasonable efforts correct the deficiency at no additional charge to Customer. The remedies set forth in this section will be Customer's sole remedy and Modelbit's sole liability for breach of such warranty.
5.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MODELBIT DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MODELBIT DOES NOT REPRESENT OR WARRANT THAT THE MODELBIT SERVICE WILL BE ERROR-FREE, AND MODELBIT EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE MODELBIT SERVICE. MODELBIT IS NOT RESPONSIBLE OR LIABLE FOR ANY PRODUCTS OR SERVICES NOT PROVIDED BY MODELBIT, AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS SOLE DISCRETION.
6.1 Indemnity by Modelbit. Modelbit will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Modelbit Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Modelbit) in connection with any such Claim. If the use of the Modelbit Service by Customer has become, or in Modelbit's opinion is likely to become, the subject of any claim of infringement, Modelbit may at its option and expense (i) procure for Customer the right to continue using and receiving the Modelbit Service as set forth hereunder; (ii) replace or modify the Modelbit Service to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Modelbit will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) Customer's use of any third party products and services that interoperate with the Modelbit Service; (B) use of the Modelbit Service by Customer not in accordance with this Agreement; (C) modification of the Modelbit Service by any party other than Modelbit without Modelbit's express consent; (D) Customer Data or Customer's Confidential Information or (E) the combination, operation or use of the Modelbit Service with other applications, portions of applications, product(s) or services where the Modelbit Service would not by itself be infringing (clauses (A) through (E), "Excluded Claims"). Modelbit's obligations in this Section shall not apply with respect to any Free Access Subscriptions or Beta Releases. This Section states Modelbit's sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Modelbit against any Claim made or brought against Modelbit by a third party arising out of any Excluded Claims, and Customer will indemnify Modelbit for any damages finally awarded against Modelbit (or any settlement approved by Customer) in connection with any such Claim.
6.3 Indemnification Procedure. Each party's indemnification obligations are contingent upon the indemnified party providing the indemnifying party with (a) prompt written notice of the Claim; (b) the sole and exclusive right to control the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim without the indemnified party's prior written consent, not to be unreasonably withheld, provided further that consent shall not be required if it unconditionally releases the indemnified party of all liability); and (c) reasonable cooperation in connection with the Claim.
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL (A) EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) MODELBIT BE LIABLE FOR ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Paid Subscriptions. If Customer is accessing the Modelbit Service via a paid subscription, this Agreement will be in effect for the subscription term set forth in the Order Form and automatically renew for additional, successive renewal terms of equal length unless either party provides the other party with written notice of non-renewal at least (30) days' before the end of the then-current renewal term. In addition, each party may each terminate this Agreement if the other party fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach.
8.2 Free Access Subscriptions. If Customer is accessing the Modelbit Service via a Free Access Subscription, each party may terminate this Agreement upon written notice to the other party.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Modelbit Service.
9.2 Publicity. Customer agrees that Modelbit may refer to Customer's name and trademarks in Modelbit's marketing materials and website; however, Modelbit will not use Customer's name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer's prior written consent (which may be by email) not to be unreasonably delayed. If Customer does not agree to Modelbit's use of Customer's name or trademark in Modelbit's marketing materials, Customer may opt-out of such use by providing written notice to Modelbit within fourteen (14) days of the date of the initial Order Form.
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party's prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. Modelbit reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. With respect to each Order Form, any modifications to this Agreement, shall become effective upon the date of Customer's next renewal of such Order Form. It is Customer's responsibility to review this Agreement from time to time for any changes or modifications. If Customer does not agree to the modified Agreement, Customer may provide notice of Customer's non-renewal at any point prior to the Customer's next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. . Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The section headings used herein are for convenience only and shall not be given any legal import
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer's applicable Order Form or email address provided by Customer when Customer creates its Modelbit Service account. Notices to Modelbit must be sent to the following:
2029 Ellis St.
San Francisco, CA 94115
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Modelbit with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Modelbit, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Government Terms. Modelbit provides the Modelbit Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Modelbit Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Modelbit Service was developed fully at private expense.
9.12 Interpretation. For purposes hereof, "including" means "including without limitation".