This document supports the AI2GO™ developer platform, the XNOR.AI® SDK, the XNOR™ Models made available as a component of the XNOR.AI SDK, and the XNOR Bundles – i.e., XNOR Models accompanied by an inference engine – made available through the AI2GO developer platform. This document was last updated May 15, 2019.
© Copyright 2018-2019 XNOR.AI, INC. All rights reserved.
XNOR.AI, XNOR, AI2GO, and the XNOR.AI logo are registered or unregistered trademarks of XNOR.AI, INC. in the United States and other jurisdictions. All other trademarks are the property of their respective owners.
The AI2GO developer platform, the XNOR.AI SDK, the XNOR Models made available as a component of the XNOR.AI SDK, and the XNOR Bundles – i.e., XNOR Models accompanied by an inference engine – made available through the AI2GO developer platform are made available to you for limited, non-commercial purposes, as long as you are a developer authorized to access the AI2GO developer platform, download and use the XNOR.AI SDK and the XNOR Models available as a component thereof, and download and use XNOR Bundles pursuant to and in accordance with the Evaluation License Terms set forth below, which includes, among other things, a right on the part of both you and XNOR.AI to terminate the agreement embodied in the Evaluation License Terms at any time (see Section 8.2 below) and an agreement to arbitrate any dispute that might arise between you and XNOR.AI (see Section 10.1 below).
THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE AI2GO DEVELOPER PLATFORM, THE XNOR.AI SDK, THE XNOR MODELS MADE AVAILABLE AS A COMPONENT OF THE XNOR.AI SDK, AND THE XNOR BUNDLES – I.E., XNOR MODELS ACCOMPANIED BY AN INFERENCE ENGINE – MADE AVAILABLE THROUGH THE AI2GO DEVELOPER PLATFORM (EACH, AN “XNOR.AI TOOL” AND, COLLECTIVELY, THE “XNOR.AI TOOLS”) FOR NON-COMMERCIAL PURPOSES RELATED TO YOUR EVALUATION THEREOF. THESE TERMS AND CONDITIONS, WHICH WE REFER TO AS THE "AGREEMENT," ARE AN AGREEMENT BETWEEN YOU AND XNOR.AI (OR, IF YOU ARE AUTHORIZED TO ACCESS AND USE THE XNOR.AI TOOLS ON BEHALF OF AN ENTITY OF WHICH YOU ARE AN EMPLOYEE OR OTHER TYPE OF AUTHORIZED AGENT, BETWEEN THAT ENTITY AND XNOR.AI). THE TERMS "XNOR.AI," "WE," "US," AND "OUR" REFER TO XNOR.AI, INC., A DELAWARE CORPORATION. YOU ARE REFERRED TO WITH THE TERMS "YOU" AND "YOUR." ALSO, EITHER US OR YOU MAY BE REFERRED TO IN THIS AGREEMENT AS A "PARTY" AND, COLLECTIVELY, AS THE "PARTIES."
READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE XNOR.AI TOOLS OR ANY COMPONENTS OF THE XNOR.AI TOOLS. BY ACCESSING OR USING THE XNOR.AI TOOLS OR ANY COMPONENTS THEREOF, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE XNOR.AI TOOLS OR ANY COMPONENTS THEREOF.
THESE TERMS AND CONDITIONS DO NOT ALTER IN ANY WAY THE TERMS OR CONDITIONS OF ANY OTHER AGREEMENT YOU MAY HAVE WITH US FOR PRODUCTS, SERVICES, SOFTWARE, TOOLS, DOCUMENTATION, OR OTHERWISE. IF YOU ARE ACCESSING OR USING THE XNOR.AI TOOLS OR ANY COMPONENTS THEREOF ON BEHALF OF AN ENTITY OF WHICH YOU ARE AN EMPLOYEE OR OTHER TYPE OF AGENT, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF.
THE CAPITALIZED TERMS THAT WE USE IN THIS AGREEMENT ARE DEFINED IN SECTION 11 BELOW OR ELSEWHERE IN THIS AGREEMENT.
1.1 The XNOR.AI Tools are Available Through the AI2GO Developer Platform.
The XNOR.AI SDK, the XNOR Models made available as a component of the XNOR.AI SDK, and the XNOR Bundles – i.e., XNOR Models accompanied by an inference engine – are made available through the AI2GO developer platform available at https://ai2go.xnor.ai/home (or a successor site).
1.2 The XNOR.AI SDK Comprises Several Components.
The XNOR.AI SDK comprises AI models (in executable, binary format), certain data (also in binary format), sample applications (in source code format and/or executable, binary format), headers and other support files (in source code format), scripts for building samples (also in source code format), and certain documentation in plain text. These components, collectively, are referred to herein as the XNOR.AI SDK, as more fully defined in Section 11.8 below. AI models, including any data, sample applications, headers and other support files, or documentation accompanying such AI models, which, together, sometimes make up components of the XNOR.AI SDK, are sometimes referred to in this Agreement, separately, as "XNOR Models." However, all references in this Agreement to the XNOR.AI SDK include XNOR Models comprised by the XNOR.AI SDK, as components thereof.
1.3 You May Access XNOR Models Separately, Including XNOR Models Accompanied By an Inference Engine, Referred to as XNOR Bundles.
From time to time, we may make certain XNOR Models available to you separately from the XNOR.AI SDK as a whole, and from time to time, we may make certain XNOR Models available to you accompanied by an inference engine, which we refer to., collectively, as XNOR Bundles. For example, after accessing and using the XNOR.AI SDK for the evaluation purposes described in this Agreement, you may wish to access and use an additional XNOR Bundle (also referred to by us as an XB) made available by us separately. If, now or in the future, you access one or more XNOR Models or XBs separately from your access to the XNOR.AI SDK as a whole, your access to and use of the XNOR Models or XBs are subject to the terms, conditions, limitations, and restrictions set forth in this Agreement, plus any additional terms, conditions, limitations, or restrictions set forth in this Agreement that apply only to XNOR Models and XBs.
2.1 We Grant You a Limited License to Develop Software Applications for Purposes of Evaluating the XNOR.AI Tools.
Subject to the terms and conditions set forth in this Agreement, we hereby grant you a limited, non-exclusive license to access the XNOR.AI Tools on machines and devices owned, leased, or otherwise controlled by you and internally use the XNOR.AI Tools for the purpose of developing one or more Software Applications in the manner described in the documentation that is contained in or that accompanies the XNOR.AI Tools for the sole purpose of evaluating the XNOR.AI Tools and their components. You may not access or use the XNOR.AI Tools or a reproduction of the XNOR.AI Tools for any other purpose, and you will not knowingly allow any person or entity that gains access to the XNOR.AI Tools through you to do anything that is not permitted by this Agreement. You may not reproduce the XNOR.AI Tools or any component of the XNOR.AI Tools except as otherwise expressly permitted by this Agreement. You may not market, rent, distribute, publicly display, publish, disclose, license, sublicense, transfer, assign, sell, or offer to sell the XNOR.AI Tools or any of its components to others except as otherwise expressly permitted by this Agreement. You may not Reverse Engineer the XNOR.AI Tools or any of their components, except to the extent that this Agreement or applicable law expressly grants you permission to do so. You may not modify the XNOR.AI Tools or any of their components, including any source code associated with the XNOR.AI Tools, except as otherwise expressly permitted by this Agreement, unless you have entered into a separate agreement with us that expressly grants you permission to do so. For the avoidance of doubt, the license granted to you in this Section 2.1 relates solely to your use of the XNOR.AI Tools and, in no event, are you granted an implied license to exercise rights with respect to any other intellectual property owned, licensed, or otherwise controlled by us.
2.2 You are Free to Use Your Software Applications Internally for Purposes of Evaluating the XNOR.AI Tools and Their Components.
In connection with the license to the XNOR.AI Tools that we grant to you in Section 2.1 above, you are free to use the Software Application, or Software Applications, that you develop using the XNOR.AI Tools internally for purposes of evaluating the XNOR.AI Tools and their components; provided that you do not distribute, commercialize, or otherwise make your Software Applications available for use by others; provided, further, that you do not, directly or indirectly, market, rent, distribute, publicly display, publish, disclose, license, sublicense, transfer, sell, offer to sell, or furnish the XNOR.AI Tools or their components to others, including in conjunction with or as part of your Software Application, or Software Applications. Notwithstanding the foregoing, we grant you permission to display your Software Applications on a limited basis, in low volume, for demonstration purposes only, consistent with your goal of evaluating the XNOR.AI Tools. If you wish to use the Software Application, or Software Applications, that you develop using the XNOR.AI Tools in a manner that is not permitted by this Agreement, prior to doing so, you will contact us at email@example.com. At our discretion, we may agree to enter into additional terms and conditions with you concerning your licensed use of the XNOR.AI Tools or one or more components thereof. Additional terms and conditions, if any, will consist of a separate written agreement between us and you (or a rider to this Agreement that, when executed and delivered by us and you, is incorporated into the terms and conditions set forth in this Agreement). Either way, the separate agreement (or rider) will contain terms and conditions in addition to those set forth in this Agreement that will apply to your licensed use of the XNOR.AI Tools in the manner that we and you agree upon. The separate agreement (or rider) may include fees in consideration for additional rights and fewer restrictions.
2.3 You May Modify and Compile Distributable Source Code, If Any, Included in the XNOR.AI SDK or XBs.
To the extent that Distributable Source Code is provided to you as part of the XNOR.AI SDK or one or more XBs, we hereby grant you permission to use, modify, and compile the Distributable Source Code for the purposes of developing Software Applications pursuant to the license granted by us to you in Sections 2.1 and 2.2 above and use the machine-readable object code that is created by compiling the Distributable Source Code with your Software Application, or Software Applications, in accordance with the license granted by us to you in Sections 2.1 and 2.2 above. Notwithstanding the foregoing, you will not modify any files that are included in the XNOR.AI SDK or XBs.
2.4 End Users of Your Software Applications Cannot Be Allowed to Reverse Engineer Your Software Applications.
In order to protect our proprietary rights in the XNOR.AI Tools, you must require end users of your Software Applications, in the terms and conditions that apply to their access to and use of your Software Applications, to expressly agree not to Reverse Engineer your Software Applications, except to the extent that you are expressly precluded by applicable law from imposing such restrictions.
2.5 You Are Not Allowed to Use the XNOR.AI Tools in a Manner that Makes Them, or Any Component Thereof, Subject to an Open Source License Agreement.
Notwithstanding anything contained in this Agreement to the contrary, you may not combine, distribute, or otherwise use the XNOR.AI Tools or any component thereof with any code or other content that is licensed pursuant to a license agreement that, directly or indirectly, requires that all or part of the XNOR.AI Tools be governed pursuant to any terms or conditions other than those set forth in this Agreement ("Non-Allowable License"). By way of example only, code or content licensed pursuant to the following license agreements is not allowed: (a) the GNU General Public License (GPL); (b) the GNU Lesser General Public License (LGPL), unless you are merely dynamically linking a shared library; or (c) the Creative Commons Attribution-ShareAlike License. You may not license or sublicense the XNOR.AI Tools pursuant to a Non-Allowable License, and any attempt, completed attempt, or written agreement by you to do so will cause this Agreement to automatically and immediately terminate, including immediate termination of the licenses and permissions that we grant to you in Sections 2.1, 2.2 , and 2.3 above. For the avoidance of doubt, none of the terms or conditions set forth in this Section 2.5 are meant to limit any rights or obligations you may have pursuant to one or more open source license agreements pursuant to which we, now or in the future, may make certain components of the XNOR.AI Tools, such as scripts, available for use by developers. In that event, we will make it clear that such components are licensed pursuant to an open source license and not this Agreement.
3.1 You Are Responsible for Your and Your Authorized User’s Use of the XNOR.AI Tools.
You are responsible for all acts and omissions related, directly or indirectly, to accessing, downloading, installing, and using the XNOR.AI Tools or any components thereof by you and, if applicable, each of your Authorized Users. YOU WILL ENSURE THAT:
3.1.1 You have the right and authority to enter into this Agreement, either on your own behalf or on behalf of an entity of whom you are an employee or other type of authorized agent;
3.1.2 You are at least 18 years of age or the age of majority in the jurisdiction in which you reside, whichever is greater;
3.1.3 You and, if applicable, your Authorized Users only use the XNOR.AI Tools in accordance with the terms and conditions set forth in this Agreement (including the limitations and restrictions on distribution and commercial use of Software Applications); all applicable laws and regulations; and the documentation provided by us to you, if any, as part of and for use in conjunction with the XNOR.AI Tools;
3.1.4 You and, if applicable, your Authorized Users use reasonable efforts to secure and protect from inadvertent disclosure to others the contents of the XNOR.AI Tools, including any associated documentation;
3.1.5 You and, if applicable, your Authorized Users do not incorporate the XNOR.AI SDK into any other software development kit or integrated development environment without the prior written consent of one of our authorized officers;
3.1.6 You and, if applicable, your Authorized Users do not work around any technical limitations in any of the components comprised by the XNOR.AI Tools;
3.1.7 Neither your Software Applications nor any of the products, services, and content made available through or as a part of your Software Applications infringes any of our, our affiliates’, our customers’, or any other third party’s Intellectual Property Rights;
3.1.8 Each of your Software Applications and their intended uses, including any and all products, services, and content made available through or as a part of your Software Applications, comply with all applicable laws and regulations;
3.1.9 You and, if applicable, your Authorized Users do not knowingly, after making such inquiries as a reasonable person in your or your Authorized Users’ position would undertake, develop or distribute Software Applications or make any products, services, or content available through or as a part of your Software Applications the use of which, in isolation or with any hardware, software, systems, networks, services, content, or data, contain features or functionality, accessible to end users or otherwise, that could be used for inappropriate or improper purposes (including any and all criminal and tortious activity) or otherwise have a detrimental effect on any person or entity; and
3.1.10 You take appropriate actions to ensure that your Authorized Users, if any, comply with the terms and conditions set forth in this Agreement, which may include entering into a written agreement with each of your Authorized Users that contain terms and conditions designed to ensure that your obligations in this Agreement and similar agreements are and will be met.
3.2 The XNOR.AI Tools are Subject to Certain Export and Import Restrictions.
You acknowledge that we are subject to regulation by agencies of the United States, such as the U.S. Treasury Department and the U.S. Commerce Department, which prohibit export or diversion of certain products and/or technology to certain countries, persons, or entities. You understand that the XNOR.AI Tools may include software or other materials that are subject to export, import, and/or use controls by the U.S. government or other governments with authority over jurisdictions from which the XNOR.AI Tools are being exported or to which the XNOR.AI Tools are being imported. You agree that the XNOR.AI Tools will not be exported, imported, used, transferred, or re-exported except in compliance with such laws, regulations, and controls. More specifically, you agree that you will not supply the XNOR.AI Tools or any components thereof to any person or entity if you know, or have reason to know, that such person intends to export or re-export the XNOR.AI Tools or such components in violation of such laws, regulations, or controls. Further, you agree not to download, export, or re-export the XNOR.AI Tools or any of its component (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List. Notwithstanding any agreement with a third party or any provision of law, regulation, or policy, if you are any agency of the government of the United States, then your rights in respect of the XNOR.AI Tools will not exceed the rights provided pursuant to this Agreement, unless you have entered into a separate agreement with us, signed by one of our authorized officers, in which we have granted you permission to do so.
3.3 You Will Give Us Credit in Your Software Applications for Use of the XNOR.AI Tools.
The XNOR.AI Tools may include instructions or requirements concerning proper attribution to us in consideration for your use of them to develop Software Applications. Unless we agree or instruct you otherwise, you will comply with such instructions and requirements and agree that you will not remove or disable any proprietary rights notices or features or functionality of the XNOR.AI Tools that are intended to give attribution to us for the products and services that we have developed. By way of example only, the XNOR.AI Tools may include instructions for a flash screen that exhibits when your Software Application launches, displaying our logo or a brief marketing statement.
4.1 We Do Not Charge a Fee for Use in Developing Software Applications Pursuant to and in Accordance with this Agreement.
If you use the XNOR.AI Tools to develop one or more Software Applications pursuant to the licenses and permissions granted by us to you in Sections 2.1, 2.2, and 2.3 above and adhere to the terms, conditions, limitations, and restrictions set forth in this Agreement, we do not charge you a fee for your use of the XNOR.AI Tools. However, the XNOR.AI Tools, though free for the purpose stated in this Section 4.1, is not open source software of the kind that is free to repurpose and redistribute without any limitations or restrictions, and you are still subject to all of the terms, conditions, limitations, and restrictions set forth in this Agreement.
4.2 We May Charge a Fee for Certain Uses of the XNOR.AI Tools; Additional Terms and Conditions Will Apply.
If you wish to use the XNOR.AI Tools in a manner that is not permitted by this Agreement, prior to using the XNOR.AI Tools for that purpose, you will contact us at firstname.lastname@example.org. At our discretion, we may agree to enter into additional terms and conditions with you concerning your licensed use of the XNOR.AI Tools. Additional terms and conditions, if any, will consist of a separate written agreement between us and you (or a rider to this Agreement that, when executed and delivered by us and you, is incorporated into the terms and conditions set forth in this Agreement). Either way, the separate agreement (or rider) will contain terms and conditions in addition to those set forth in this Agreement that will apply to your licensed use of the XNOR.AI Tools in the manner that we and you agree upon. The separate agreement (or rider) may include fees in consideration for additional rights and fewer restrictions.
4.3 You Will Cooperate with Us to Promote the XNOR.AI Tools and Software Applications Developed by You.
You will cooperate with us by accepting any reasonable request from us to support efforts promoting the use of the XNOR.AI Tools and Software Applications that you develop using the XNOR.AI Tools, including the following: (a) requests by us to participate in targeted press and analyst interviews highlighting the benefits of using the XNOR.AI Tools; and (b) requests by us to participate in customer case studies that we develop, including allowing us to demonstrate the effectiveness, quality, and value of the XNOR.AI Tools by showcasing one or more of the Software Applications that you develop in such studies or in marketing, promotional, and demonstration materials that we publish, display, and distribute. We will not undertake any of the activities described in this Section 4.3 without your prior approval. However, if you give us your approval pursuant to this Section 4.3, you hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, non-transferable, non-sublicenseable, royalty-free license to reproduce and use your name and trademarks and logos, if any, in connection with our production, use, publication, display, and distribution of such case studies and other marketing, promotional, and demonstration materials.
4.4 If Any Sales or Other Use Taxes Apply, You Agree that You Are Responsible for Them.
You acknowledge and agree that, as between us and you, you are solely responsible for paying all applicable customs, duties, sales, use, value added, or other taxes, federal, state, or otherwise, however designated, that are levied or imposed by reason of the licenses granted and other transactions contemplated by this Agreement, excluding only taxes based on our net income.
If you become aware of any circumstances that constitute an actual or threatened breach of the terms, conditions, obligations, limitations, or restrictions set forth in Sections 2.1 through 3.3 above, you will notify us promptly in writing and immediately take all steps reasonably necessary to correct and remedy the circumstances that constitute the actual or threatened breach. Failure to comply with any of the terms, conditions, obligations, limitations, or restrictions set forth in Sections 2.1 through 3.3 above, including your obligations set forth in this Section 5, will constitute a material breach of this Agreement, and we will have the right to immediately terminate this Agreement, with or without advance notice, including termination of the licenses and permissions that we grant to you in Sections 2.1, 2.2, and 2.3 above. Our right to terminate this Agreement pursuant to this Section 5 is not our exclusive remedy. As set forth in Section 10.9 below, we may have additional rights and remedies under the law, which we are free to exercise.
6.1 We Reserve Our Intellectual Property and Other Proprietary Rights.
We reserve all rights to the XNOR.AI Tools and their components not otherwise expressly granted in Section 2 above. The XNOR.AI Tools, including each copy thereof and all components thereof, including Models and XBs, are licensed to you, not sold. You acknowledge that your rights in and to XNOR.AI Tools are solely as set forth in Sections 2.1, 2.2, and 2.3 above and do not include any implied licenses to or any rights of ownership in the XNOR.AI Tools or any of their components. You agree that we own all right, title, and interest, including any and all Intellectual Property Rights, in and to the XNOR.AI Tools and any and all authorized and unauthorized changes, corrections, or other modification made to and derivative works of the XNOR.AI Tools. You hereby irrevocably assign to us any and all rights you are deemed to have in any such modifications and derivatives, including any and all associated Intellectual Property Rights, and agree to execute all documents necessary to implement and effect this assignment.
6.2 You Know that You May Need to Seek and Obtain Other Licenses.
You understand that this Agreement only grants a license to the XNOR.AI Tools, themselves, for non-commercial purposes and that you may need to seek and obtain licenses or other forms of permission from us or others in order to use, reproduce, publish, display, license, sell, offer for sale, or distribute your Software Applications in the manner that you intend. You agree that we have no obligation to you with respect to providing notice of or acquiring such licenses or permissions, and you understand that this Agreement does not transfer, assign, or license to you any Intellectual Property Rights in or related to any other products or services designed and developed by us, now or in the future, that are not covered by this Agreement.
6.3 You Will Not Assert Patent Claims Against Us.
You will not assert, either during the term of this Agreement or after the expiration of this Agreement, any patent claims in any jurisdiction against us, our affiliates, or any of our respective licensees in which you allege that one or more patents, directly or indirectly, are infringed based on: (a) any version of the XNOR.AI Tools or any of their components; or (b) the interoperation of any product, service, or technology offered by us, our affiliates, or any of our respective licensees with the XNOR.AI Tools or any of their components. Notwithstanding the foregoing, you will be relieved of this obligation where your patent claims are being asserted defensively in response to a third-party claim, and the third party asserting such claim does not withdraw that assertion within 10 days after being notified of your obligations set forth in this Section 6.3.
6.4 If You Choose to Provide Us with Feedback, We Own the Feedback You Provide.
You and, if applicable, your Authorized Users may provide us with feedback on the XNOR.AI Tools, including feedback on bugs, faults, errors, and non-conformities within or relating to the XNOR.AI Tools and suggestions for improvements to the XNOR.AI Tools, one or more of their components, or one or more of our other products or services (collectively, "Feedback"). You hereby agree that we will own any and all Feedback, with no obligation to pay any amounts to you or others, including all modifications to the XNOR.AI Tools, each of the components of the XNOR.AI Tools, and each of our other products and services that are developed or identified in the course or as a result of your use of the XNOR.AI Tools, including all associated Intellectual Property Rights (collectively "Improvements"). To the extent that you are deemed to have any ownership rights in and to any Improvements, you hereby assign to us all of your right, title, and interest in and to such Improvements, including all associated Intellectual Property Rights. Further, you will not knowingly provide us with any Improvements that are subject to third-party Intellectual Property Rights, and you hereby agree to cooperate fully and to ensure that your Authorized Users cooperate fully with us with respect to executing and delivering any further instruments and doing any other acts that we reasonably request in order to ensure that we own any and all Improvements and to enable us to register and otherwise protect any and all Intellectual Property Rights associated with Improvements.
7.1 Our Warranties are Expressly Limited.
THE XNOR.AI TOOLS ARE PROVIDED BY US TO YOU "AS IS," AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. BECAUSE THE XNOR.AI TOOLS ARE PROVIDED AS-IS, WE MAY NOT PROVIDE YOU WITH ANY TECHNICAL SUPPORT IN CONNECTION WITH YOUR USE OF THEM. WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE XNOR.AI TOOLS WILL BE ERROR FREE OR THAT ALL ERRORS IN THE XNOR.AI TOOLS WILL BE CORRECTED. WE ALSO SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE ARE ADVISED OF THE PURPOSE), TITLE, AND NONINFRINGEMENT AND THOSE IMPLIED WARRANTIES, IF ANY, ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH IN THIS SECTION 7.1 MAY NOT APPLY.
7.2 Our Liability is Expressly Limited.
IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES PROVIDED BY US TO YOU PURSUANT TO THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN EXCESS OF ONE HUNDRED U.S. DOLLARS, REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE. FURTHER, IN NO EVENT WILL WE BE LIABLE FOR (a) ANY DAMAGES WHATSOEVER, DIRECTLY OR INDIRECTLY, ARISING OUT OF ANY PRODUCTS, SERVICES, OR CONTENT MADE AVAILABLE THROUGH OR AS A PART OF YOUR SOFTWARE APPLICATIONS OR (b) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 These Limitations of Liability Represent Independent Allocations of Risk and Reflect that the XNOR.AI Tools are Made Available to You at No Cost or Almost No Cost.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8.1 This Agreement May Have a Limited Term.
This Agreement is effective upon your agreement to be bound by its terms and conditions, as manifested by the conduct described in the second paragraph above, and expires upon termination of this Agreement in accordance with the provisions set forth in Section 8.2 below or, in the case in which you have entered into additional licensing terms and conditions in the form of a rider to this Agreement (please refer to Sections 2.2 and 4.2 above), upon the expiration or earlier termination of that rider. Upon termination of this Agreement for any reason, the licenses and permissions that we grant to you in this Agreement will immediately and automatically terminate, including the licenses and permissions granted by us to you in Sections 2.1, 2.2, and 2.3 above, at which point you will immediately stop accessing and/or using the XNOR.AI Tools, including all copies and components of the XNOR.AI Tools, and promptly destroy all copies and components of the XNOR.AI Tools in your possession or control, unless you have permission to keep and use such copies and components pursuant to a separate written agreement between us and you. If we ask, you will provide us with proof that such copies and components were destroyed.
8.2 This Agreement May be Terminated or Suspended Under Certain Circumstances.
EITHER PARTY IS ALLOWED TO TERMINATE THIS AGREEMENT AT ANY TIME FOR ANY REASON OR NO REASON BY SENDING THE OTHER PARTY WRITTEN NOTICE. For the avoidance of doubt, we are allowed to terminate this Agreement immediately, without penalty or liability of any kind, if you or one of your Authorized Users (a) fails to comply with one or more of the terms, conditions, obligations, limitations, or restrictions set forth in this Agreement, including those in Sections 2.1 through 3.3 above; (b) tortiously or unfairly interferes with our customers, our business relations, or our operations; or (c) fails to comply with the terms and conditions set forth in any other agreement between us and you (each, "Cause"). We are also permitted to terminate or suspend this Agreement if we determine, in our reasonable judgment, that any applicable law, regulation, or ruling prohibits us from providing the XNOR.AI Tools or any component thereof to you or one or more of your Authorized Users. If this Agreement is terminated for Cause, you will immediately cease any and all use of any Software Application, or Software Applications, that you developed using the XNOR.AI Tools. Further, regardless of whether or not this Agreement is terminated for Cause or otherwise, you agree to immediately cease any and all use of any Software Application, or Software Applications, that do not comply with the terms and conditions set forth in this Agreement or were developed by you or one or more of your Authorized Users without complying with the terms and conditions set forth in this Agreement. For the avoidance of doubt, we will not have any liability to you or your Authorized Users as a result of our termination or suspension of this Agreement in accordance with the terms and conditions set forth in this Agreement or any termination or suspension of the license to use the XNOR.AI Tools granted by us to you as long as such termination or suspension complies with the terms of this Agreement. If this Agreement is terminated for Cause, you will pay us all reasonable attorney fees, fees related to collections, and related expenses, actually incurred by us in connection with our enforcement of our rights.
8.3 Some Terms and Conditions Will Survive the Termination of this Agreement.
The terms, conditions, representations, warranties, limitations, restrictions, and obligations contained in this Agreement that, by their sense and context, are intended to survive the performance of this Agreement will survive the completion of such performance and the termination of this Agreement. For the avoidance of doubt, any and all payment obligations that accrue to us pursuant to this Agreement prior to the effective date of its termination are intended to survive. However, none of the licenses or permissions granted by us to you pursuant to this Agreement, including those granted pursuant to Sections 2.1, 2.2, and 2.3 are intended to survive.
You will indemnify, defend, and hold harmless us and our affiliates and each of our respective officers, directors, employees, agents, representatives, independent contractors, consultants, shareholders, licensors, vendors, and suppliers from and against any liabilities, losses, damages, and expenses, including court costs and reasonable attorney’s fees, arising out of or in connection with any third-party claim (each, a "Claim") that: (a) alleges the infringement or misappropriation of any Intellectual Property Right by: (i) one or more of your Software Applications or the use thereof, including the combination of one or more of your Software Applications with any hardware, software, systems, networks, services, content, or data; (ii) any product, service, or content made available, or required to be made available, through or as a part of one or more of your Software Applications; or (iii) your or your Authorized Users’ combination of the XNOR.AI Tools or any of their components with any hardware, software, systems, networks, services, content, or data; (b) alleges libel, slander, or defamation in connection with the use of one or more of your Software Applications or any product, service, or content made available through or as a part of one or more of your Software Applications; (c) alleges injury, death, or property or other damage arising from or related to the use of one or more of your Software Applications or any product, service, or content made available through or as a part of one or more of your Software Applications; (d) alleges facts that, if true, constitute a breach of your or your Authorized User’s obligations set forth in this Agreement or any other agreement between us and you; or (e) alleges facts that, if true, would constitute a violation of applicable law or regulation by you or one or more of your Authorized Users in connection with the performance of this Agreement or the development, sale, and/or distribution of one or more of your Software Applications. Your obligations pursuant to this Section 9, with respect to each Claim, are contingent upon: (x) us providing you with notice of the Claim; (y) us providing reasonable cooperation, at your expense, in the defense and settlement of the Claim; and (z) you having sole authority to defend or settle the Claim; provided, that the failure to provide notice of the Claim will not relieve you of your obligations pursuant to this Section 9 except to the extent of any material prejudice directly resulting from our failure and you will not settle any Claim in a manner that admits guilt on behalf of us or imposes any restriction or obligation on us without obtaining the advance written consent of one of our authorized officers.
10.1 We Will Resolve Our Disputes, If Any, by Negotiation and, If Necessary, Arbitration.
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach of this Agreement, the Parties will use their best efforts to settle the dispute, claim, question, or disagreement. To this end, the Parties will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both Parties. If the Parties do not reach such a resolution within a period of 60 days, then, upon notice by either Party to the other, all such disputes, claims, questions, or disagreements will be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Within 14 days after the commencement of arbitration, each Party will select one person to act as arbitrator and the two arbitrators selected by the parties will select a third arbitrator within 10 days after the day on which the second of them is appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator will be selected by the American Arbitration Association. The place of the arbitration will be Seattle, Washington, U.S.A. The language of the arbitration will be English. Either Party, if it wishes to do so, may apply to the arbitrators seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either Party, without waiving any remedy under this Agreement, also may seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Except as may be required by law or as otherwise expressly permitted by this Section 10.1, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration conducted pursuant to this Section 10.1, including any determination made or award given, without the prior written consent of both Parties.
10.2 The Parties May Seek Equitable Remedies from a Court of Law in Certain Circumstances.
Notwithstanding Section 10.1 above, each Party acknowledges and agrees that, due to the unique nature of Intellectual Property Rights, licenses to Intellectual Property Rights, and trade secrets and other confidential information, there can be no adequate remedy at law for any breach or threatened breach of a Party’s obligations related to such matters, that any such breach or threatened breach may allow the defaulting Party or third parties to unfairly compete with the non-defaulting Party resulting in irreparable harm to the non-defaulting Party, that any such breach or threatened breach would cause irreparable harm to the non-defaulting Party, and, therefore, that upon any such breach or threatened breach, in addition to any other remedies at law or in equity that the non-defaulting Party may have, the non-defaulting Party is entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., in connection with any action seeking such conservatory or interim measures.
10.3 This Agreement is Governed by the Laws of the State of Washington, U.S.A.
This Agreement and all disputes, claims, or controversies arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.4 Our Relationship with You and Your Relationship with Us is that of Independent Contractors.
The relationship between us and you is that of independent contractors. Consistent with each Party’s status as an independent contractor, each Party will retain the sole and exclusive right to supervise, control, or direct the manner or means by which it performs its duties and exercises its rights under this Agreement. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
10.5 Notices Will Be Provided in Writing to the Address that Each Party Provides.
All notices and other communications required or permitted under this Agreement will be in writing, addressed to the applicable Party at the street address and/or email address provided by such Party to the other (which, in the case of a business entity, may be provided to the other Party by publicly displaying the address of such Party’s principal corporate headquarters on the Internet or elsewhere), and deemed effectively delivered only: (a) upon personal delivery, (b) upon delivery by a courier service as confirmed by written delivery confirmation, (c) upon delivery by facsimile as confirmed by transmission receipt, (d) upon delivery by email provided that the subject of the email includes "RESPONSE REQUIRED – LEGAL" and receives a non-automated response, or (d) five days after deposit in the mail, postage prepaid.
10.6 You May Not Assign this Agreement without Our Consent.
You may not assign or transfer this Agreement, in whole or in part, without our prior written consent. We may freely assign this Agreement. Any assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement will come to the benefit of the successors and permitted assigns of the Parties.
10.7 These Terms and Conditions Comprise the Entire Agreement between Us and You Concerning the XNOR.AI Tools.
These terms and conditions comprise the entire agreement between us and you with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between us and you with respect to the XNOR.AI Tools and any related services. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving Party to object to these terms, provisions, or conditions.
10.8 This Agreement Cannot be Amended or Its Provisions Waived Except Under Limited Circumstances.
No term or provision of this Agreement will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party. Except as otherwise set forth in Section 10.10 below, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both Parties.
10.9 There Are a Few Additional Rules Governing the Interpretation of this Agreement.
You acknowledge and represent that, in accepting this Agreement, you have had the opportunity to seek advice as to your legal rights from legal counsel and that you have read and understood all of the terms and provisions of this Agreement. As such, no ambiguity will be construed against us based upon a claim that we drafted the ambiguous language. Also, this Agreement is in the English language, which language will be controlling, even if interpretations of this Agreement in other languages are made. The headings appearing at the beginning of sections contained in this Agreement have been inserted for convenience only and will not be used to construe or interpret this Agreement. Whenever required by context, a singular term will include the plural, the plural term will include the singular, and the gender of any pronoun will include all genders. References to us and you will include our respective successors and/or permitted assignees. Any references to recitals, articles, sections, paragraphs, schedules, exhibits, riders, addenda, and other attachments are to the recitals, articles, sections, paragraphs, schedules, exhibits, riders, addenda, and other attachments to this Agreement. A reference to days shall mean calendar days and not business days or working days, unless otherwise stated in this Agreement. References to "include" and "including" will not be given a restrictive meaning and will be interpreted "without limitation." If any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable. The rights and recourse to remedies set forth in this Agreement will not, under any circumstances, be deemed to be exclusive. As such, each Party reserves to it all rights and recourse to remedies afforded by applicable law.
10.10 Modification of this Agreement.
We reserve the right to change or modify the terms and conditions of this Agreement, or any policy or guideline governing use of the XNOR.AI Tools, at any time and in our sole discretion; provided, that, in the event of a modification of the terms and conditions of this Agreement, we will notify you of the modifications and allow you to review and accept the Agreement, as modified, prior to continuing to use the XNOR.AI Tools. However, your continued use of the XNOR.AI Tools, following notice of modifications to this Agreement, will constitute your acceptance of this Agreement, as modified. If you do not agree to any modifications of this Agreement, as they may occur, you will immediately discontinue accessing and/or using the XNOR.AI Tools.
For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
11.1 "API" means an application programming interface.
11.2 "Authorized Users" means: (a) any persons who provide services to you as full- or part-time employees; and (b) any persons who (i) provide services to you as contingent workers (e.g., individuals who provide services to you as independent contractors), (ii) are authorized by you to use the XNOR.AI Tools on your behalf, and (iii) use the XNOR.AI Tools to develop one or more Software Applications on your behalf.
11.3 "Distributable Source Code" means certain application templates, code stubs, code snippets, example applications, sample code, and code fragments in source code or compiled form that are either included as part of the XNOR.AI SDK or XBs or that we otherwise make available to you pursuant to the licenses and permissions that we grant to you in Sections 2.1 and 2.3 above.
11.4 "Intellectual Property Rights" means all rights in, to, or arising out of: (a) any U.S., international, or foreign patent or any software therefore and any and all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (b) inventions (whether patentable or not in any country or other jurisdiction), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, and technical data; (c) copyrights, copyright registrations, mask works, mask works registrations, software, moral rights, trademarks, and rights of personality, privacy, and likeness, whether arising by operation of law, contract, license, or otherwise; and (d) any other similar or equivalent proprietary rights anywhere in the world.
11.5 "Reverse Engineer" includes any act of reverse engineering, translating, disassembling, decompiling, decrypting, or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage,” “cable or wireless link sniffing,” or “black box” reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data, or software from one form into a human-readable form.
11.6 "Software Application" means a software application developed using the XNOR.AI Tools, including XNOR Models and XBs.
11.7 "SDK" means any programming package (including any APIs, modules, data, sample applications, scripts for building sample applications, templates, headers or other support files, libraries, interfaces, documentation, or other programming tools or materials, whether tangible or intangible, in whatever form or medium, including on-line tools) that enables the development of software applications for any type of platform, framework, or system.
11.8 "XNOR.AI SDK" means the SDK that we make available to you pursuant to this Agreement for purposes of developing one or more Software Applications, unless such materials are made available to you pursuant to a separate agreement between us and you. For purposes of this Agreement, the XNOR.AI SDK expressly includes Updates, but, for the avoidance of doubt, it does not include other products or services that we offer and that are not made available to you pursuant to this Agreement.
11.9 "Updates" means bug fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the XNOR.AI Tools created by us and made available by us to you pursuant to this Agreement.
The XNOR.AI Tools may include portions of third party code. You can find the licenses for that third party code here. By accepting the EVALUATION LICENSE TERMS, you acknowledge and accept that the XNOR.AI Tools include third party licensed elements and that those elements are subject to all of the license terms, conditions, restrictions, and limitations set forth in each applicable third party license.
Again, you can find the licenses for that third party code here.
If you have any questions about the terms, conditions, obligations, limitations, or restrictions set forth in this Agreement, please do not hesitate to contact us at email@example.com. If, prior to accessing or using the XNOR.AI Tools, you decide that you do not agree to any of the terms, conditions, obligations, limitations, or restrictions set forth in this Agreement, you have no right to use the XNOR.AI Tools. In that case, do not attempt to access or use the XNOR.AI Tools by any means, and if you have already done so, promptly delete the XNOR.AI Tools from all machines or other devices owned, leased, or otherwise controlled by you.