IMPORTANT NOTICE: This Subscription Agreement applies exclusively to users residing outside Mainland China. Please read and understand the entire content of this Subscription Agreement, especially those parts highlighted in bold or underlined text.
**SUBSCRIPTION AGREEMENT**
Effective Date: May, 24th, 2023
THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”), TOGETHER WITH ANY ORDER ON WHICH THEY ARE REFERENCED, GOVERNS THE LICENSING, INSTALLATION AND USE OF THE APPLIFY AI SERVICES. BY RECEIVING THE APPLIFY AI SERVICES, OR BY ACCESSING THE WEBSITE: (A) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF THE COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING OR, IF THERE IS NO COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY, OR OTHER ENTITY (IF ANY).
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR COMPANY OR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING AN ORDER (OR OTHER ORDERING OR PURCHASING DOCUMENT) FOR THE APPLIFY AI SERVICES, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE ANY PORTION OF THE APPLIFY AI SERVICES.
This Agreement is entered into by and between Applify AI, Inc. (“we” or “Applify AI”), a Delaware corporation, with its principal place of business at 125 Western Ave, Allston, MA 02134, and the customer (“You” or “Customer”) that is purchasing subscriptions of our products and services, including our application programming interface, software, tools, data, documentation and Website (collectively, the “Applify AI Services”), and is effective as of the date You receive or otherwise access the Applify AI Services. This Agreement also includes each Order (as defined below) You submitted to Applify AI which provides the type, quantity, conditions, and/or terms for the subscriptions to the Applify AI Services.
Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A.
Membership; License Grant.
(a) Membership. Applify AI provides a number of membership plans, each of which contains various Applify AI Services options that require payment before they can be accessed.
(b) Registration and Access. To subscribe for the applicable Applify AI Services, Customer must register for an account first. Customer must provide accurate and complete information to register for the account. Customer may not make its access credentials or account available to others, and Customer are responsible for all activities that occur using its credentials. After registering the account, Customer may subscribe for the applicable Applify AI Services by submitting the relevant Order(s) through its account.
(c) Purchased Subscription. Subject to Customer’s timely payment of the applicable Subscription Fees and the terms and conditions of this Agreement, Applify AI hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use or access the Applify AI Services purchased by such Customer within the Membership Capacity, subject to the applicable subscription terms (as specified in applicable Order(s)) solely for the Customer’s Internal Business Purposes during the applicable Subscription Term.
(d) Service-Specific Terms. To the extent there are any Service-Specific Terms applicable to Customer’s use of the Services, those are incorporated by reference into this Agreement.
Service Limitations. Applify AI hereby agrees to use reasonable efforts to keep the Applify AI Services operational. However, Applify AI Services offerings and their availability may change from time to time, without liability to the Customer.
License Restrictions.
(a) Unless otherwise expressly permitted by Applify AI, Customer shall not and Customer has no right to: (i) copy any Applify AI Services; (ii) modify, adapt, or create derivative works of any Applify AI Services; (iii) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Applify AI Services to any third party; (iv) decompile, disassemble or reverse-engineer any Applify AI Services, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Applify AI Services; (v) access or use any Disabled Materials; (vi) use the Applify AI Services to develop foundation models or other large scale models that compete with Applify AI; (vii) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Applify AI Services (including in order to gain access to any Disabled Materials); (viii) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Applify AI Services; (ix) exceed the applicable Membership Capacity or violate other license limitations identified in this Agreement; (x) separately use any of the applicable features and functionalities of the Applify AI Services with external applications or code not furnished by Applify AI; (xi) use any method to extract data from the Applify AI Services, including web scraping, web harvesting, or web data extraction methods, other than as permitted through the API; (xii) represent that output from the Applify AI Services was human-generated when it is not; (xiii) otherwise access or use any Applify AI Services except as expressly authorized in this Agreement; or (xiv) encourage or assist any third party to do any of the foregoing. Customer acknowledges that the Applify AI Services may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if the Subscription Term expires or the applicable Membership Capacity is reached or exceeded.
(b) Depending on the applicable Membership Capacity, Customer may assign End Users to use the Applify AI Services. End Users may be employees or contractors of Customer or its Affiliates who are using the Applify AI Services solely for the benefit of Customer or its Affiliates. Customer will obtain and maintain from End Users any consents necessary to allow Applify AI to deliver the Applify AI Services.
(c) Any third party software, services, or other products Customer uses in connection with the Applify AI Services are subject to their own terms, and Applify AI is not responsible for such third party products.
(d) Customer shall not use the Applify AI Services (including without limitation, the use of the Content (as defined below)) for, nor shall Customer provide any Input (as defined below) through the Applify AI Services in connection with, the following activities: (i) provision of child sexual abuse material or any content that exploits or harms children, (ii) generation of hateful, harassing or violent content, (iii) activities that has high risk of physical harm, such as content that promotes, encourages, or depicts acts of self-harm, (iv) activities that has high risk of economic risk, such as automated determinations of eligibility for educational institutions, (v) fraudulent or deceptive activities, such as plagiarism and academic dishonesty, (vi) provision of adult content, (vii) political campaigning or lobbying, (viii) activities in connection with the infringement, misappropriation or violation of any person’s rights, or (ix) other illegal activities.
Content; Ownership.
(a) Customer and its End Users may provide input to the Applify AI Services (the “Input”), and receive output generated and returned by the Applify AI Services based on the Input (the “Output”). The Input and the Output are collectively the “Content.” As between Applify AI and Customer and to the extent permitted by applicable law, Customer owns all of the Input, and subject to Customer’s compliance with this Agreement, Applify AI hereby assigns to Customer all its right, title and interest in and to the Output. Applify AI may use the Content as necessary to provide and maintain the Applify AI Services, comply with applicable law, and enforce its policies. Customer is solely responsible for the Content, including for ensuring that it does not violate any applicable law or this Agreement.
(b) Applify AI, its suppliers and/or licensors own all worldwide right, title and interest in and to the Applify AI Services, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer hereunder, Customer will not acquire or claim any right, title or interest in or to any Applify AI Services or related Intellectual Property Rights, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the software provided through the Applify AI Services is licensed, not sold, to Customer.
(c) To the extent that Customer provides any Feedback, Customer grants to Applify AI a perpetual, irrevocable, worldwide, nonexclusive, transferable, sublicensable, royalty-free, fully paid-up right and license to use and commercially exploit the Feedback in any manner Applify AI deems fit. Further, Customer hereby agrees that Applify AI may use the Content to develop and improve the Applify AI Services. If Customer does not want its Content to be used for the development and improvement of the Applify AI Services, Customer may opt out by contacting [email protected] with Customer’s account information.
Subscription Fees.
(a) Customer will pay all subscription fees set forth in the Order (the “Subscription Fees”) for the Applify AI Services delivered to Customer at the commencement of the Subscription Term. Without limitation of Applify AI’s other termination rights, if Customer fails to pay the Subscription Fees when due, then Applify AI may terminate this Agreement and all licenses granted hereunder by notice to Customer. All Subscription Fees are non-refundable once paid.
(b) Any sums payable under this Agreement are exclusive of taxes. Customer is responsible for all sales, use, excise, and value added taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on any amounts payable by Customer hereunder, other than any taxes imposed on, or with respect to, Applify AI’s income, revenues, gross receipts, personnel, or real or personal property, or other assets, and shall pay all such sums payable hereunder free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by the applicable laws.
Records and Audit. Customer shall establish and maintain complete and accurate records related to the location, access and use of the Applify AI Services by Customer, its employees or its agents, and any such other information as reasonably necessary for Applify AI to verify compliance with the terms of this Agreement. Such records shall be kept for at least three (3) years following the end of the quarter to which they pertain. Upon prior notice, Applify AI or its representative may inspect such records to confirm Customer’s compliance with the terms of this Agreement. If an audit reveals that Customer (and/or any of its service provider) has exceeded the Membership Capacity or the scope of Customer’s license grant during the period audited, then Applify AI will invoice Customer, and Customer will promptly pay Applify AI any underpaid Subscription Fees based on Applify AI’s price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the Membership Capacity, then Customer will also pay Applify AI’s reasonable costs of conducting the audit. Customer will ensure that its service providers provide Applify AI with the access described in this Section 7. This Section 7 will survive expiration or termination of this Agreement for a period of three (3) years.
Privacy. Customer’s privacy is important to Applify AI. Please read Applify AI’s Privacy Policy at Applify AI Privacy Policy (the “Privacy Policy”) as it describes the types of data Applify AI collects from Customer and Customer’s devices (the “Data”), how Applify AI uses Customer’s Data, and the legal basis Applify AI has to process Customer’s Data.
WARRANTY DISCLAIMER.
(a) THE APPLIFY AI SERVICES, THE OUTPUT, THIRD PARTY CONTENT, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, APPLIFY AI AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, APPLIFY AI DOES NOT WARRANT THAT USE OF THE APPLIFY AI SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
(b) DUE TO THE NATURE OF MACHINE LEARNING, APPLIFY AI SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES THAT THE CONTENT GENERATED THROUGH THE APPLIFY AI WILL NOT INFRINGE ANY PERSON’S INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) APPLIFY AI AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “APPLIFY AI ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) APPLIFY AI ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO APPLIFY AI FOR THE APPLIFY AI SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER APPLIFY AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT APPLIFY AI, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).
Indemnification. Customer shall indemnify, defend, and hold harmless Applify AI and its Affiliates, and each of Applify AI’s and its Affiliates’ respective officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees, arising out of or resulting from any claim, suit, action, or proceeding by any third party relating to:
(a) any breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;
(b) the gross negligence or willful misconduct, or any failure to comply with applicable laws, of any employee, agent, or independent contractor of Customer or any of its sublicensees or subcontractors in connection with this Agreement; or
(c) Customer’s use of the Applify AI Services.
Confidential Information.
(a) Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Applify AI will include the software, tools, data (including any license keys) provided by Applify AI through the Applify AI Services.
(b) Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, and subcontractors (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 12 will continue in effect for a period of three (3) years from the date of last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 12 will continue in effect in perpetuity with respect to the Confidential Information of Applify AI.
(c) Exclusions. The obligations of Recipient under Section 12(a) will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
(d) Required Disclosures. The provisions of Section 12(a) will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure.
(e) Return or Destruction of Confidential Information. Upon termination of the Agreement or support and maintenance, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
(f) Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 12, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
Government End User Rights. Customer acknowledges that all of the products provided through the Applify AI Services were developed entirely at private expense and that no part of such products was first produced in the performance of a government contract. Customer agrees that the Applify AI Services and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Applify AI Services are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Applify AI Services except as expressly agreed to in writing by Customer and Applify AI.