Updated On: 31 January 2024
These Terms and Conditions, together with its Schedules (the “Terms”) are made and entered into on the Effective Date by and between AutogenAI Inc (d/b/a AutogenAI), a company incorporated in Delaware having its registered offices at 418 Broadway, Suite R Albany, NY, 12207 (“AutogenAI”) and the entity signing the Order Form which references these Terms (“Customer”). These Terms along with the Order Form constitute the agreement between the parties (collectively referred to as the “Agreement”).
1.1 Capitalized terms not otherwise set out in these Terms shall have the meaning set out in the attached Schedule 1 (Definitions).
2.1 AutogenAI will provide to Customer the applicable Services purchased by Customer as set out in the relevant Order Form.
2.2 Subject to payment of the applicable Fees, the restrictions set out in this clause 2 and the terms and conditions of these Terms and the applicable Order Form, AutogenAI hereby grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable right during the Term to use the Services and the applicable AutogenAI Technology.
2.3 Customer’s use of the Services will be subject to the Usage Policy. The Usage Policy is hereby incorporated by reference and forms part of this Agreement.
3. Fees and Payment Terms
3.1 Customer shall pay to AutogenAI the Fees set forth in the applicable Order Form in accordance with this clause 3.
3.2 AutogenAI will invoice Customer for the applicable Fees in accordance with the payment schedule and payment instructions set out in the Order Form.
3.3 All amounts and Fees stated or referred to in the Agreement are non-refundable and are exclusive of all Taxes. Customer shall be solely responsible for, and paying all applicable Taxes relating to the Agreement, and the use or access to the Services and Support Services.
3.4 Customer shall pay invoices in full and without deduction by electronic money transfer to the account details provided in each invoice, in the currency specified in the Order Form or invoice, by the date specified on each invoice .
3.5 If AutogenAI has not received payment for any invoices when due (excluding invoices subject to good faith dispute, as notified by Customer in writing prior to the due date), without prejudice to its other rights and remedies, AutogenAI may charge interest on such overdue amounts accruing at 1% per month or the maximum interest rate allowed under applicable law, whichever is less.
3.6 AutogenAI may increase the Fees on no more than an annual basis by giving Customer at least sixty (60) days’ prior notice thereof.
4.1 AutogenAI warrants that: (i) the Services will perform materially in accordance with any applicable technical documentation made available by AutogenAI; and (ii) any professional services provided as part of the Services will be provided in a professional and workmanlike manner.
4.2 The warranty provided in clause 4.1 shall not apply to the extent of any non-conformance which is caused by: (i) Customer’s implementation or use of the Services contrary to AutogenAI’s instructions or documentation or otherwise in breach of the Agreement; (ii) modification or alteration of the Services by any party other than AutogenAI or AutogenAI’s duly authorized contractors or agents; or (iii) any Customer Data or other inaccurate or out of date information provided by an Authorized User.
4.3 If the Services do not conform with the warranty provided in clause 4.1, AutogenAI will, at its expense, use commercially reasonable efforts to correct any such non-conformance within a reasonable period of time at no additional charge to Customer. This clause 4.3 sets out the Customer’s sole and exclusive remedy and AutogenAI’s entire liability for breach of clause 4.1.
4.4 IMPORTANT DISCLAIMERS: EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 4, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AUTOGENAI AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND RELATED TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT THE SERVICES OR THEIR OUTPUT WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, OR ERROR-FREE.
AUTOGENAI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE SERVICES AND/OR THIRD-PARTY APPLICATIONS OR THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AUTOGENAI USES COMMERCIALLY REASONABLE ANTI-VIRUS TOOLS BUT IS NOT RESPONSIBLE FOR ANY VIRUS WHICH IS NOT DETECTED BY SUCH TOOLS OR TRANSMITTED THROUGH ANY THIRD-PARTY SERVICES.
CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR THE CONTENT AND OTHER RESULTS OBTAINED FROM THE USE OF THE SERVICES BY CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH CONTENT AND USE. NEITHER AUTOGENAI, NOR ITS SUPPLIERS OR THIRD-PARTY SERVICE PROVIDERS OR SOFTWARE VENDORS, SHALL HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF CUSTOMER DATA OR CONTENT, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER, ANY AUTHORIZED USER, OR ANY THIRD PARTY IN RELIANCE UPON ANY CUSTOMER DATA OR CONTENT.
5. Intellectual Property Rights
5.1 Customer acknowledges and agrees that AutogenAI and its licensors and suppliers own all Intellectual Property Rights in the AutogenAI Technology, Services, and AutogenAI Data, but excluding Customer Data & Content. Except as expressly stated herein, the Agreement does not grant Customer any Intellectual Property Rights or any other rights or licenses in respect of the AutogenAI Technology, Services, or AutogenAI Data.
5.2 Customer owns all Intellectual Property Rights in the Customer Data and Content.
6. Term and Termination
6.1 The Agreement shall commence on the Effective Date and shall continue for 12 months (the “Initial Term”) unless otherwise terminated as provided in this clause 6. Thereafter, the Agreement shall automatically renew for successive fixed terms of 12 months (each a “Renewal Term”). Either party may terminate the Agreement by providing the other party with not less than three (3) months’ written notice prior to the end of the Initial Term or relevant Renewal Term. Where a Minimum Term is specified in the Order Form, the Customer can not terminate the Agreement before the end of that Minimum Term.
6.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other at any time with immediate effect upon written notice if the other party: (i) is in material breach of any of its obligations under the Agreement and/or an Order Form and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or (ii) voluntarily files a petition under bankruptcy or insolvency law; shall have a receiver or administrative receiver appointed over it or any of its assets; or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
6.3 AutogenAI may, without liability to Customer, suspend Customer’s or any user’s account or access to any or all of the Services (and its provision of Support Services) if it believes in good faith that: (a) there has been any material misuse of the Services or breach of the Agreement (including, without limitation, any non-payment by Customer); or (b) such suspension is advised in order to protect the integrity and security of the Services or the other systems or data of AutogenAI, Customer, or any third party. AutogenAI will promptly restore access once the underlying issue has been satisfactorily resolved.
6.4 On termination or expiration of the Agreement for any reason: (i) Customer’s rights of use granted under the Agreement shall immediately terminate and Customer shall immediately cease the use of the Services subscribed to under the Agreement, the AutogenAI Technology, and the Support Services; (ii) Customer shall promptly pay all monies due or to become due under the Agreement; and (iii) the parties shall comply with their respective obligations set out in clause 8.4.
7. Limitation of Liability
7.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA, ARISING IN CONNECTION WITH THE AGREEMENT, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL AUTOGENAI BE LIABLE FOR ANY AGGREGATE AMOUNT EXCEEDING THE AMOUNTS PAID BY CUSTOMER TO AUTOGENAI UNDER THE ORDER FORM IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS AND THE DISCLAIMERS IN THE AGREEMENT AND THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS CLAUSE 7.1 WILL NOT LIMIT A PARTY’S LIABILITY FOR (I) GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY LAW.
7.2 In addition to the other exclusions set out in this clause 7, AutogenAI has no liability: (i) for any third party products or services accessed and/or used by Customer through the Services; (ii) where any failure to provide the Services is caused by a network, hardware or software fault in equipment which is not under the control of AutogenAI; (iii) any act or omission of Customer or any Authorized User; (iv) use of the Services in breach of the Agreement; (v) any unauthorized access to the Services including a malicious security breach; (vi) loss or damage caused by Customer’s delay or failure to timely provide any required information or cooperation or to fulfil its obligations under the Agreement; or (vii) a Force Majeure Event (and AutogenAI shall provide Customer with prompt notice of any Force Majeure Event and its expected duration).
8. Confidential Information
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.
8.2 Each party shall (i) hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement; and (ii) take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. If the receiving party is legally required to disclose any Confidential Information of the disclosing party, it will (if legally permitted) provide the disclosing party prompt written notice sufficient to allow it an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then it may produce only such Confidential Information as is legally required.
8.3 Subject to clause 8.2 and except where a party is expressly required by law to retain a copy, on termination of the Agreement or when requested to do so in writing by the disclosing party, the receiving party shall promptly:
8.3.1 deliver to the disclosing party any documents and other materials in its possession or control that contain any of the Confidential Information;
8.3.2 permanently delete, destroy and erase all electronic copies of the Confidential Information from any computer or data storage system into which the Confidential Information was entered (except where a party is required by Applicable Law to keep copies); and
8.3.3 make no further use of the Confidential Information.
8.4 The receiving party, if requested by the disclosing party, shall confirm in writing that the provisions of clause 8.3 have been complied with. The obligations of confidentiality under this clause 8 shall survive any expiration or termination of the Agreement for a period of 2 years from the date of termination, except for any information which is deemed a trade secret of a party in respect of which the obligations of confidentiality shall continue for as long as such information remains a trade secret.
9. Data Protection
9.1 The terms of the data processing addendum posted as of the Effective Date are hereby incorporated by reference.
10.1 The Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, without regards to conflicts of laws principles. Any dispute arising out of this Agreement will be settled exclusively through binding arbitration administered in New York, NY by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the Expedited Procedures in those Rules). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of Intellectual Property Rights or breach of confidentiality. The prevailing party in any dispute hereunder will be entitled to recover its reasonable attorney’s fees and costs. If this arbitration clause is held unenforceable, then the parties submit and consent to the exclusive jurisdiction of the state and federal courts in Wilmington, Delaware to resolve any disputes hereunder. THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.
10.2 AutogenAI may change these Terms and Conditions and the other components of the Agreement (except any Order Forms) from time to time by posting an updated version on its website. If AutogenAI makes a material change to the Agreement, AutogenAI will provide the Customer with at least 30 days’ prior notice, either by emailing the email address associated with the Customer’s account or by messaging the Customer through the Services. The materially revised Agreement will become effective on the date set forth in AutogenAI’s notice, and all other changes will become effective upon posting of the change. If the Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute the Customer’s acceptance of any revised terms and conditions.
10.3 Customer agrees that AutogenAI and its Affiliates may publish Customer’s name and logo in its customer lists, and promotional, marketing and investment materials, in any media. Customer will assist AutogenAI with the creation of a case study regarding the supply of services.
10.4 This agreement constitutes the entire agreement between the parties. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
SCHEDULE 1 – Definitions
The following definitions apply to the Agreement and its Schedules (including the Order Form(s) attached as Schedules)). Any capitalized terms not otherwise defined in the Agreement or its Schedules have the meanings set out below:
Affiliate: means an entity that controls, is directly or indirectly controlled by, or is under common control with, a party to the Agreement. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty per cent (50%) of the voting power to elect directors of the entity, or (ii) greater than fifty per cent (50%) of the ownership interest in the entity.
Applicable Laws: means all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to advertising, the Applicable Data Protection Laws, international communications and the transmission of technical or personal data, and all compulsory industry self-regulations;
Applicable Data Protection Laws: means any laws or regulations regarding privacy or data protection which apply to a party’s fulfilment of obligations or exercise of rights hereunder. Applicable Data Protection Laws may include, as applicable and without limitation, the California Consumer Privacy Act and California Privacy Rights Act, the UK Data Protection Act 2018, and the General Data Protection Regulation (EU) 2016/679 (as implemented under English law);
Associated Companies: an entity that is directly or indirectly controlled by, or is under common control with, a party to the Agreement. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty per cent (50%) of the voting power to elect directors of the entity, or (ii) greater than fifty per cent (50%) of the ownership interest in the entity;
Authorized User: means those employees, agents and independent contractors of Customer who are authorized by Customer to access and use the Services;
AutogenAI Application: means the AutogenAI software application as described in the Order Form;
AutogenAI Data: means any information or data provided by AutogenAI to Customer as part of the Services, any feedback or suggestions on the Services provided by Customer to AutogenAI, any technical, usage, or performance data collected by AutogenAI regarding the Services, and any other data of which AutogenAI is the Controller (and excluding, for avoidance of doubt, Customer Data and Content);
AutogenAI Marks: means the AutogenAI name, logo, and any of the product names associated with the Services, all of which are trademarks of AutogenAI;
AutogenAI Resources: means the training materials and other resources created by AutogenAI;
AutogenAI Technology: means any technology or software used by AutogenAI to provide the Services, including without limitation, the AutogenAI Resources, the AutogenAI Application and/or any other underlying technology, trade secrets, data, content or information;
Confidential Information: means information of a party concerning its business and/or affairs, including without limitation to information relating to a party’s operations, technical or commercial know-how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know-how, designs, trade secrets, software, documents, data and information which, when provided by a party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, identified as Confidential Information at the time of disclosure; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure. For avoidance of doubt, Customer acknowledges that the details of the AutogenAI Technology, Services, AutogenAI Data, and the results of any performance tests of the Services, constitute AutogenAI’s Confidential Information;
Content: the content generated by the AutogenAI Application;
Customer Data: the (i) data and information provided by Customer to AutogenAI and/or imported, inputted, uploaded and/or shared by Customer, Authorized Users or AutogenAI on Customer’s behalf, for the purpose of using the Services or facilitating Customer’s use of the Services; or (ii) data generated by or for Customer through Customer’s use of the Services, but excluding AutogenAI Data;
Effective Date: the effective date of the Order Form as set out in such Order Form;
Fees: the fees payable under the Agreement pursuant to the Order Form;
Force Majeure Event: acts, events, omissions or accidents beyond a party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm;
Inappropriate Content: Content which falls into the following categories (i) unlawful (including breach of Intellectual Property Rights of any other party), harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory on the grounds of race, gender, colour, religious belief, sexual orientation, disability or any other illegal activity; (vi) causes damage or injury to any person or property; or (vii) Content that falls into any of the following categories and any other categories as may be communicated by AutogenAI to the Customer from time to time:
Hate: content that expresses, incites, or promotes hate based on identity.
Harassment: content that intends to harass, threaten, or bully an individual.
Violence: content that promotes or glorifies violence or celebrates the suffering or humiliation of others.
Self-harm: content that promotes, encourages, or depicts acts of self-harm, such as suicide, cutting, and eating disorders.
Sexual: content meant to arouse sexual excitement, such as the description of sexual activity, or that promotes sexual services (excluding sex education and wellness).
Political: content attempting to influence the political process or to be used for campaigning purposes.
Spam: unsolicited bulk content.
Deception: content that is false or misleading, such as attempting to defraud individuals or spread disinformation.
Malware: content that attempts to generate ransomware, keyloggers, viruses, or other software intended to impose some level of harm.
Intellectual Property Rights: intellectual property rights including without limitation rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
Minimum Term: the Minimum Term for Services as specified in the Order Form during which time the Agreement cannot be terminated;
Order Form: the Order Form executed by both parties which references these Terms and details the Services ordered by Customer and the Fees payable by Customer and any other additional terms in respect of Customer’s access to and use of the Services;
Services: the Services purchased by Customer as set forth in the applicable Order Form and provided in accordance with the Agreement, including access to the applicable AutogenAI Technology for such Services;
Services Commencement Date: the date the Customer begins to access the Services;
Support Services: the provision by AutogenAI to Customer of technical advice, basic training and such other assistance and support related to the use of the Services;
Taxes: any applicable taxes, including without limitation, withholding, sales, use, excise, value added tax and similar taxes but shall not include taxes based on AutogenAI’s gross income;
Usage Policy: AutogenAI’s Usage Policy posted on AutogenAI’s website as updated from time to time; and
Virus: anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.