PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS EARLY ACCESS SUBSCRIPTION AGREEMENT (“AGREEMENT“) CAREFULLY BEFORE INSTALLING OR USING THE EARLY ACCESS OFFERING. BY DOWNLOADING, INSTALLING, USING, CLICKING AN “ACCEPT” OR “AGREE” BUTTON, OR OTHERWISE ACCESSING THE EARLY ACCESS OFFERING, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN AND HAVE THE LEGAL CAPACITY TO DO SO. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SUCH COMPANY, ORGANIZATION, OR LEGAL ENTITY TO THESE TERMS AND IN SUCH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH COMPANY, ORGANIZATION, OR LEGAL ENTITY. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND DIGITAL.AI SOFTWARE, INC. (“DIGITAL.AI“) THAT GOVERNS YOUR USE OF THE EARLY ACCESS OFFERING. YOU AGREE THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS ORAL AND WRITTEN AGREEMENTS.
“Confidential Information” means any information, maintained in confidence by a disclosing party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or information that by its form, nature, content, or mode of transmission a reasonable recipient would deem confidential or proprietary, including Digital.ai offers, pricing, and any benchmark data or results produced. Confidential Information includes, but is not limited to, the Early Access Offering and any Evaluation Feedback provided to Digital.ai.
“Documentation” means all written and electronic information and materials made available to You by Digital.ai relating to the access, use, operation, or functionality of the Early Access Offering, including technical and user manuals and operating instructions.
“Early Access Offering” means any Software, Services, or Documentation provided to You by Digital.ai under this Agreement.
“Early Access Period” means that period from when the Early Access Offering is made available to You until the earlier of the date of general commercial availability of the Early Access Offering (if any) or termination of this Agreement as provided herein.
“Early Access User” means anyone who uses or accesses the Early Access Offering under this Agreement. Early Access Users include both individuals who have accepted the terms and condition of this Agreement and any and all employees, contractors, or third-party agents of any company, organization, or other legal entity who are authorized to use the Early Access Offering, where the terms and conditions of this Agreement were accepted on behalf of such entity.
“Evaluation Feedback” means all Early Access User-provided feedback relating to access, use, and evaluation of the Early Access Offering, including, without limitation, feedback on features, functionality, usability, specifications, architectural diagrams, APIs and related information, software and hardware compatibility, interoperability, performance, defects or bugs, test results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Early Access Offering.
“Services” means and cloud or managed services, including, where applicable, any network, computing, or storage services, cloud environments sandboxes, or instances or the like provided to You by Digital.ai under this Agreement.
“Software” means the object code versions of the software or run-time modules in object code format as provided to You by Digital.ai under this Agreement.
“User Data” means any data or information provided by an Early Access User or associated entity in the course of accessing and using the Early Access Offering or otherwise under this Agreement.
2. Ownership and Proprietary Rights. Except for the limited license rights granted herein, title, ownership rights and all intellectual property rights in and to the Early Access Offering shall remain the sole and exclusive property of Digital.ai and its licensors and You agree that You acquire no other rights or licenses under any intellectual property, proprietary, or similar rights to the Early Access Offering.
3. Grant of Rights by Digital.ai and Exclusions
3.1. Subject to the terms and conditions of this Agreement, Digital.ai grants each Early Access User a non-exclusive, non-transferable, revocable, non-commercial, and non-sublicensable right and license for the Early Access Period to access and use the Early Access Offering solely for the purposes of internal, non-public evaluation of the Early Access Offering and supplying Evaluation Feedback to Digital.ai. The Early Access Offering may not be accessed or used for productive or commercial purposes and any use or access is subject to the requirements and restrictions included herein.
3.2. Third Party Offerings. You are responsible for complying with any applicable terms and conditions of any third-party data, products, services, and platforms used in conjunction with the Early Access Offering (“Third Party Offerings”). Digital.ai makes no representations or warranties regarding such Third-Party Offerings.
3.3. Open Source Software. The Early Access Offering and Software may contain open source software or other third party software (“OSS“) licensed under such OSS’s own applicable license terms. Any such OSS, if licensed, is licensed only under the terms set forth in the corresponding open source license, which You may find on the Internet at a designated URL, or in the header files of such OSS. Notwithstanding the foregoing, this Agreement shall not prevent or restrict You from exercising additional or different rights referring to any open source code, documentation, or materials contained in or provided with the Early Access Offering and Software in accordance with the applicable license for such code, documentation, and materials, which may be found in the corresponding technical documentation. Digital.ai is not obligated to provide any maintenance or support for the OSS and accepts no liability for Your use of such OSS.
4. Grant Rights to Digital.ai
4.1. Evaluation Feedback. You agree to provide reasonable Evaluation Feedback from the Early Access Users to Digital.ai during the Early Access Period. You agree to grant and hereby grant Digital.ai a non-exclusive, irrevocable, worldwide, royalty-free right and license to use reproduce, distribute, make derivative works based on, publicly display, publicly perform, make, use, sell and export Evaluation Feedback, including without limitation the right to sublicense such rights through multiple tiers of sublicensees. You represent and warrant that you have all rights necessary to provide the Evaluation Feedback and grant these rights. You further agree that Digital.ai is in no way obligated to incorporate, use, or otherwise acknowledge any Evaluation Feedback You provide.
4.2. User Data. You represent and warrant that You own all right, title and interest in and to all User Data and will secure and maintain all rights in User Data necessary for Digital.ai to provide the Early Access Offering without violating the rights of any third party. Digital.ai does not and will not assume any obligations with respect to User Data other than as expressly set forth in this Agreement or as required by applicable law. You have sole responsibility for the accuracy and quality of User Data, the means by which User Data was acquired and Your use of User Data with the Early Access Offering. If any Early Access User is located in the European Economic Area and/or their member states, Switzerland and the United Kingdom, You represent and warrant that You shall obtain all appropriate consents, make all necessary disclosures, and otherwise conform to all applicable laws of the EEA, Switzerland and/or the United Kingdom related to any personal data included in User Data provided to Digital.ai or collected or otherwise processed by the Early Access Offering. You agree to grant and hereby grant Digital.ai a non-exclusive, irrevocable, worldwide, royalty-free right and license to use User Data for the purposes of making the Early Access Offering available.
4.3. Technical Data. You agree that Digital.ai may collect and use usage and technical data and related information (including, but not limited to, technical information about Customer’s devices, server, system and application software, and peripherals, and device fingerprints) that is gathered periodically to modify, improve, or enhance the Early Access Offering Software, facilitate the provision of software updates, product support (where applicable), and other products and services as well as to monitor compliance with this Agreement. Digital.ai reserves the right to permanently delete any collected usage and technical data and related information thirty (30) days following the Early Access Period.
5. Requirements and Restrictions of Use
5.1. You shall not circumvent, or attempt to circumvent, the requirements for an individual login for each Early Access User, any license requirement, security devices, access logs, or other measures provided, or permit or assist any Early Access User to do the same. Digital.ai may supply administrator login credentials which enable You to assign usernames and passwords to Early Access Users. You assume sole responsibility for use of any such credentials and shall notify Digital.ai immediately if such credentials are, or are suspected to have been, misappropriated. You must follow the recommended installation procedures for Software licensed under the Agreement. Unless otherwise agreed upon, You agrees that the server(s) on which the Software will be installed will be connected at all times to the Internet and not to block, electronically or otherwise, the transmission of data required for compliance with the Agreement. Any blocking of data required for compliance under the Agreement is a material breach thereof. You are responsible for all acts and omissions of Your Early Access Users as if they were Your acts and omissions.
5.2. Except as expressly permitted by the Agreement, You will not, directly or indirectly,
5.2.1. Use or provide access to the Early Access Offering as a service bureau, application service provider, or other service provider to third parties;
5.2.2. Sublicense transfer, lease, rent or otherwise assign Your rights in the Early Access Offering to any third party;
5.2.3. Modify the Early Access Offering or create or attempt to create any derivative works of the Early Access Offering or translate, reproduce, reverse engineer, re-engineer, de-compile, or disassemble the Early Access Offering or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Early Access Offering (except to the extent such restrictions are contrary to applicable law);
5.2.4. Make use of any element of the Early Access Offering in violation of Digital.ai’s Acceptable Use Policy, (the “AUP”);
5.2.5. Alter or remove any proprietary rights notices or legends appearing on or in the Early Access Offering;
5.2.6. Modify, distribute, or otherwise use the Software in any manner that causes any portion of the Software that is not already subject to an open source license to become subject to the terms of any open source license, in whole or in part; or
5.2.7. Permit or assist any Early Access User to do any of the foregoing.
6. Additional Terms for Generative Artificial Intelligence Features and Offerings
6.1. The Early Access Offering may comprise or include generative AI features, services, or software offerings (“GAI Services“) to which the additional terms of this Section shall apply.
6.2. Content. You may provide input to the GAI Services (“Input”), and receive output generated and returned by the GAI Services based on the Input (“Output”). Input and Output are collectively “Content.” As between You and Digital.ai and to the extent permitted by applicable law, You own all Input. Subject to your compliance with the Agreement (including the additional terms of this Section), Digital.ai hereby grants You a non-exclusive, non-transferable, revocable, and non-sublicensable license to the Output, for the purposes of internal, non-public evaluation of the Early Access Offering and GAI Services and supplying Evaluation Feedback to Digital.ai.
6.3. Input. You are solely responsible for your Input. You must not submit any Input that: (a) includes trademarks or other materials protected by third-party Intellectual Property Rights, unless you have sufficient rights in such materials; or (b) is intended to generate Output that is substantially similar to a third party’s copyrighted work or is otherwise protected by third-party Intellectual Property Rights, unless you have sufficient rights in such work. We may automatically block your Input, in our sole discretion, if we believe it violates the rights of a third party, applicable law, our AUP, or the Agreement (including the additional terms of this Section).
6.4. Suitability of Output. Use of GAI Services may produce Output that is unexpected or unsuitable for You or Early Access Users. The Output may not be unique and other users of GAI Services may generate the same or similar Output. DIGITAL.AI PROVIDES THE GAI SERVICES “AS-IS” AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING IT AND THE OUTPUT, INCLUDING ANY IMPLIED WARRANTIES THAT THE OUTPUT WILL NOT VIOLATE THE RIGHTS OF A THIRD PARTY OR ANY APPLICABLE LAW. In addition, you must not, and agree that you will not, remove or alter any watermarks, notices, or metadata that may be generated with the Output, or otherwise attempt to mislead others about the origin of the Output or permit an Early Access User to do so.
6.5. GAI Services Additional Restrictions and Requirements. In addition to those requirements and restrictions otherwise described in the Agreement, You may not (i) use output from the GAI Services to develop or improve models that compete with any utilized by Digital.ai; (ii) except as permitted through an applicable Application Programming Interface (API), use any automated or programmatic method to extract data or output from the GAI Services, including via scraping, web harvesting, or web data extraction; (iii) represent that output from the GAI Services was human-generated when it is not; (iv) provide any personal information or personal data (including any sensitive personal information) as may be defined in applicable data protection laws to Digital.ai in connection with your use of the GAI Services; or (v) use any of the GAI Services in geographies not supported by Digital.ai.
6.6. Digital.ai reserves the right to throttle, limit, disable, suspend, or terminate your right to use or access the GAI Services or associated features at any time in our sole discretion.
6.7. Digital.ai Use of Content. Digital.ai may use Content to provide and maintain the GAI Services and Early Access Offerings, to train and improve our other products and services, comply with applicable law, and enforce our policies.
7. Warranty Disclaimer
7.1. You hereby acknowledge and agree that the Early Access Offering includes pre-release, non-generally available technology and may be prone to “bugs”, errors, and stability issues.
7.2. YOU ACCEPT THE EARLY ACCESS OFFERING “AS IS” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DIGITAL.AI HAS NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD HARMESS YOU, ANY EARLY ACCESS OFFERING USER, OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
7.3. Digital.ai does not warrant that the Early Access Offering will perform without error or that it will run without immaterial interruption. Digital.ai gives no warranty regarding, and will have no responsibility or liability for, any loss arising out of: (a) use of the Early Access Offering in combination with any hardware or software not provided by Digital.ai. You acknowledge and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Early Access Offering, You assume such risks. Digital.ai offers no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties. Digital.ai will have no responsibility or liability for the accuracy of User Data. Digital.ai does not represent or warrant that the Early Access Offering will be released or made commercially or generally available or that any future products or services will be similar to, or compatible with, any Early Access Offering.
8. Limitations of Liability
8.1. Digital.ai hereby disclaims any and all liability to You, any Early Access User, and any third party with regard to the Early Access Offering to the maximum extent permitted by applicable law. In the event any of the aforementioned parties are entitled to recover damages from Digital.ai, Digital.ai’s entire liability for all claims in the aggregate arising from or related to the Early Access Offer ng(s) or otherwise arising under this Agreement regardless of whether such claim(s) for such damages are based in contract, tort, strict liability, or otherwise, shall not exceed the total amount paid by such party to Digital.ai in the 6-month period preceding the event giving rise to such liability. This limit also applies to any of Digital.ai’s vendors and suppliers. It is the maximum for which Digital.ai and its employees, agents, vendors and suppliers are collectively responsible.
8.2. IN NO EVENT WILL DIGITAL.AI BE LIABLE TO YOU, ANY EARLY ACCESS USER, OR ANY THIRD PARTY FOR ANY LOSS, EXPOSURE, OR DAMAGE TO DATA, LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVING, EVEN IF DIGITAL.AI OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR ALL RISKS WITH RESPECT TO THE EARLY ACCESS OFFERING. The foregoing exclusions and limitations shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
9. Indemnification of Digital.ai. You agree to defend, indemnify and hold Digital.ai, its Affiliates and licensors, and each of their respective officers, employees, directors, managers, partners, and agents (collectively, the “Digital.ai Indemnitees”) harmless from any and all claims (and all associated losses, damages, fines, and expenses, including reasonable attorneys’ fees) arising out of or relating to (i) Your or any Early Access User’s breach of Sections 4, 5, or 6 of this Agreement or (ii) any allegation that any User Data or Evaluation Feedback infringes or misappropriates any patent, copyright, trademark or trade secret or associated right.
10.1. Each party that receives Confidential Information of the other party agrees that, unless the disclosing party gives its prior written authorization, the receiving party shall not: (i) use such Confidential Information other than for the purposes of this Agreement; or (ii) disclose any such Confidential Information to any third party except those directors, managers, officers, employees, subcontractors, consultants, representatives and agents of the receiving party (collectively, the “Representatives”) who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations at least as restrictive as the provisions of this Agreement. The receiving party shall prevent the unauthorized use, disclosure, dissemination or publication of Confidential Information by itself and by its Representatives using at least the same degree of care that the receiving party uses to protect its own confidential information of a similar nature, but in no event less than a commercially reasonable degree of care.
10.2. The obligations of the parties under this Section 10 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority of competent jurisdiction, provided that the receiving party has provided, to the extent permitted by applicable law, prompt notice to, and full cooperation with, the disclosing party prior to such disclosure so that such party may seek a protective order or other appropriate remedy to protect against or limit disclosure.
10.3. Upon request by the disclosing party, the receiving party will certify to the disclosing party in writing that all copies, abstracts, summaries, and documents including Confidential Information have been destroyed.
10.4. Any breach of the confidentiality obligations set forth in this Section 10 would constitute a material breach of this Agreement, which the parties acknowledge may cause irreparable harm to the disclosing party, leaving it without an adequate remedy at law. Such a breach shall therefore entitle the disclosing party to seek injunctive relief in addition to all other remedies, without the necessity of posting of a bond or other security in connection therewith.
10.5. This Section 10 will remain in effect during the Evaluation Access Period and for a period of two (2) years following the expiration of such period and, in the case of Confidential Information that constitutes a trade secret under applicable law, for so long as such Confidential Information remains a trade secret.
11. Privacy and Data Protection Agreement. The parties agree that the Data Protection Agreement (“DPA”), located at https://digital.ai/data-processing-addendum , sets forth their obligations with respect to the processing and security of Personal Data, as such term is defined in the DPA.
12. Support. Support may be provided by Digital.ai in its sole discretion.
13. Term and Termination
13.1. The term of this Agreement shall commence upon Your acceptance thereof (the “Effective Date”) and shall continue until termination or expiration as provided for herein.
13.2. Termination for Convenience. Either party may terminate this Agreement immediately for any reason or no reason upon written notice, email being sufficient.
13.3. If this Agreement is terminated or the Early Access Period otherwise expires, You must within 10 days after such termination destroy or return and cease all access of the Early Access Offering and certify in writing that You have complied with this Section 13.3.
13.4. All provisions and obligations of this Agreement which by their nature should survive termination will survive, including provisions and obligations with regard to Your grant of rights to Digital.ai, confidentiality obligations, warranty disclaimers, and limitations of liability.
14.1. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, which governing law shall control without giving effect to conflict of law principles and excluding the U.N. Convention on Contracts for the International Sale of Goods, even where adopted as a part of the domestic law of the country whose law governs this Agreement. Any suit or proceeding relating to this Agreement shall be brought exclusively before the state or federal courts located in the State of Delaware.
14.2. Assignment. You may not assign this Agreement, in whole or in part, without Digital.ai’s prior written consent. Any attempted assignment or transfer of the Agreement in violation of this provision shall be null and void. Digital.ai may assign this Agreement and any of its rights or obligations hereunder to its affiliates or in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, reorganization, or change in control or similar transaction.
14.3. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of this Agreement.
14.4. Waiver. Any failure by either party to detect, protest, or remedy any breach of this Agreement will not constitute a waiver or impairment of any such term or condition, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. A waiver can only occur pursuant to the prior written express permission of an authorized officer of the other party.
14.5. Notices. All notices, instructions, requests and other communications required or permitted under this Agreement shall be made in writing to the following addresses (or addresses notified in writing by either party): to Digital.ai: email@example.com; and to You at the email address provided in connection with You receiving access to the Early Access Offering or accepting this Agreement.
14.6. Export Restrictions. Export laws and regulations of the United States and any other applicable jurisdictions apply to the Early Access Offering. You agree that such applicable export control laws govern Your use of the Early Access Offering and agree to comply with all such applicable export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information or Software will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws, including nuclear, chemical, or biological weapons proliferation, or development of missile technology. You represent and warrant that neither You nor any Early Access User is: (i) located in a country that is subject to a U.S. Government embargo (e.g., an embargoed country as designated by the Office of Foreign Asset Control of the U.S. Treasury Department), or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties (e.g., the prohibited persons list maintained by the Bureau of Industry and Security of the U.S. Department of Commerce).
14.7. Any disputes arising in countries not recognizing or not executing court verdicts from the jurisdiction Digital.ai set forth in this Section shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). Such disputes or claims shall be settled by simplified arbitration arranged by ICC in accordance with the rules of arbitration procedure adopted by ICC and in force at the time when such proceedings are commenced. Arbitration shall be conducted in the State of Delaware before one arbitrator appointed in accordance with the ICC Rules. All arbitration shall be conducted in English. The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon shall be confidential and may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. You may only resolve disputes with Digital.ai on an individual basis and agree not to bring or participate in any class, consolidated, or representative action against Digital.ai or any of Digital.ai’s employees or affiliates.