Thank you for choosing software and services from VESSL AI Inc., a Delaware corporation (the “Company”). Below is a copy of the end-user license agreement of both our unpaid trial or/and demonstration product versions and paid product or subscription service versions between you (an individual or entity), hereinafter referred to as “Licensee,” and the Company. Read the terms and conditions of this agreement carefully before installing, accessing, or commencing the use of the Company’s software and service. The License granted hereunder is conditioned upon your acceptance of the terms set forth herein. By clicking “Next,” you accept and agree to all terms and conditions of this agreement. If you do not accept the terms of this agreement, you should not access the License.
GRANT OF LICENSE. The Company hereby grants to Licensee a non-exclusive, non-transferable and non-assignable license (the “License”) to the Licensee to access and use a certain AI service and solution platform to build most efficient and seamless ML workflows known as VESSL and its associated software and systems, including, its web dashboard access or application for the sole purpose of demonstration, evaluation, trial, and use for User’s own business purposes (collectively, “Licensed Software”), subject to the terms and conditions of this License Agreement. Both the Company and Licensee may be individually referred to as “Party” and collectively referred to as “Parties” throughout this document.
UNPERMITTED USE. Licensee will not disassemble, decompile, attempt to “reverse engineer,” or otherwise use the Licensed Software for any purposes other than those which are permitted by the Company (collectively “Unpermitted Use”), nor shall Licensee permit any other person to engage in the Unpermitted Use. Licensee will make reasonable efforts to prevent such Unpermitted Use, and Licensee will advise its employees and agents who are permitted access to the Licensed Software of the restrictions upon such Unpermitted Use contained in this Agreement. Licensee will be liable for any Unpermitted Use by its employees or agents. Licensee agrees not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the Software, (b) copy, modify, translate, alter, change, or collect information that can be used to create derivative works of all or any part of the Software, (c) download, copy, or collect information that could be used to copy all or any part of the Software, or access or use all or any part of the Software for any purpose other than for the evaluation, demonstration, or permitted use of the Licensed Software.
PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS. The contents, documents, information, materials, organization, graphics, design, compilation, digital conversion, and the ideas, procedures, processes, systems, methods, and concepts embodied within the Licensed Software or related in any way to the Licensed Software shall be the copyrights, trademarks, trade secrets, and/or other proprietary or intellectual property rights of the Company. This license is not a sale of a copy, redistribution, use, or publication of the Licensed Software (except for the sole purpose of using for the Permitted Use as set forth in Section 2) and does not render Licensee the ownership of such copy, restriction, use or publication of the Licensed Software. Ownership of the Licensed Software and all related components and technologies shall at all times remain with the Company, regardless of who may be deemed the owner of the tangible media in or on which the Licensed Software may be copied, encoded, or otherwise fixed.
WARRANTY DISCLAIMER.
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND ANY THIRD-PARTY SOFTWARE DOWNLOADED AND INSTALLED BY LICENSEE IS AT LICESEE’S SOLE RISK. THE SOFTWARE PROVIDED HEREUNDER IS PROVIDED “AS IS,” WITHOUT WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE. THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH SOFTWARE (IF ANY) SHALL BE WITH LICENSEE. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OR AGAINST INFRINGEMENT. LICENSOR AND ITS THIRD-PARTY LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE AND THIRD-PARTY SOFTWARE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR THAT LICENSEE’S USE OF THE SOFTWARE WILL BE UNINTERUPTED, VIRUS-FREE, OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY THIRD-PARTY LICENSORS HEREIN.
LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY THE COMPANY, WHETHER THE LICENSED SOFTWARE OR ANY THIRD-PATY SOFTWARE, UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING CONTRARY HERETO, THE AGGREGATE LIABILITY OF THE COMPANY UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY THE COMPANY UNDER THIS AGREEMENT SHALL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY LICENSEE TO THE COMPANY UNDER THIS AGREEMENT.
THIRD-PARTY ITEMS AND THIRD-PARTY SERVICES. In connection with Licensee’s use of the Licensed Software, Licensee may acquire or obtain access to third-party services, including internet or mobile services and any website that is not operated by Company (“Third-Party Services”). Licensee shall be responsible for ensuring that the Third-Party Services (including, without limitation, computer systems, internet connectivity, and cellular services) with which Licensee chooses to operate the Licensed Software meets Company's minimum requirements, including, without limitation, the processing speed, memory, and the availability of dedicated internet access required for the Licensed Software, and that Licensee and its authorized users’ use of such Third-Party Services with the Licensed Software is not in violation of any licenses, terms, conditions, laws, rules and/or regulations regarding the use of such Third-Party Services.
ADDITIONAL TERMS FOR THIRD-PARTY SOFTWARE AND THIRD-PARTY COMPONENTS. Without limiting the foregoing, the Licensed Software may include Third-Party Components (as defined below), and Third-Party Software (as defined below) may be provided from time to time in conjunction with Licensed Software. Licensee’s use of the Third-Party Software and Third-Party Components (including any updates or upgrades thereto) may be subject to separate or additional terms and conditions. These separate or additional terms and conditions, if any, will be made available in a text file accompanying the Software and/or, in the case of Third-Party Software, may be made available when Licensee uses or installs the Third-Party Software for the first time. With respect to Third-Party Software provided to Licensee by Company, Company is only able to provide such software with Licensee’s understanding, acknowledgment and agreement that such software is: (a) provided as a convenience to Licensee only; and (b) if it is not accompanied by a separate software license, it is subject to the terms and conditions of this Agreement as though it were Software, except that in all cases it is provided by Company "AS IS" and "AS AVAILABLE" with no express or implied conditions, endorsements, guarantees, representations or warranties. If Licensee wishes to obtain Third-Party Software on other terms, Licensee should acquire this Third-Party Software directly from its suppliers. In no event shall such separate license agreements or additional terms and conditions between Licensee and the supplier be binding on Company or impose any additional obligations, or obligations inconsistent with the terms of this Agreement, upon Company whatsoever. To the extent that any particular Third-Party Component is covered by additional terms and conditions that provide Licensee with rights to use, copy, distribute, or modify all or part of such Third-Party Component more broadly than the rights afforded Licensee under this Agreement for the Software then, solely to such extent, Licensee can exercise such broader rights without breaching the terms of this Agreement for the remainder of the Software for which Licensee obtained the benefit of such broader rights.
"Third-Party Components" means software and interfaces licensed by Company from a third party for incorporation into a Company software product and distributed as an integral part of that the Company product under a Company brand but does not include Third-Party Software. "Third-Party Software" means standalone software applications proprietary to a third party that are provided by the Company or its authorized distributors bundled with, or separately for use with, the Software.
SUBSCRIPTION SERVICE. (a). Subscription Service and Fee. Licensee shall pay a subscription fee on a monthly basis for continued access to the Licensed Software (“Subscription Fee”). The Company offers different levels of access and services to the Licensed Software at different Subscription Fees under different tiers of subscription plan (“Subscription Plan”).
(b). Subscription Fee Payment. The amount paid for Subscription Fees is based on the Subscription Plan purchased and not actual usage. When License selects and purchases a Subscription Plan, the Subscription Fee is payable and due on such purchase. Should Licensee decide to upgrade its Subscription Plan, Licensee shall be required to pay the increased Subscription Fee before accessing the Licensed Software associated with the upgrade Subscription Plan. Additionally, should Licensee decide to downgrade its Subscription Plan, Licensee shall retain access to the Licensed Software associated with the previous Subscription Plan until the commencement of the next payment cycle. In any case, Licensee will not be eligible for any refunds or adjustments of any prepaid fees even if the number of Licensee’s users subsequently decreases beyond the Licensee’s agreed service tiers. For clarification purposes, such Licensee is free to stop using the Company’s service plan at any time, but all prepaid fees are non-refundable. Licensee is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. Unless otherwise stated, Subscription Fees do not include any taxes, levies, duties, or similar governmental assessment of any nature (“Taxes”). Licensee is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 8, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
GPU CLUSTER USE CREDITS. In addition to access to the Licensed Software under a Subscription Plan, Licensee shall have the option to access and use the processing power of Company-managed GPU clusters (“Clusters”) by purchasing and using GPU cluster use credits (“Credits”) under the following conditions:
(a) Purchase of Credit. Licensee may purchase the Credits to be deposited into Licensee’s user account and redeem the Credits to pay for its use of Clusters. The minimum amount for a single purchase of Credits shall be USD $100. Any Credits deposited by Licensee, including Credits deposited via Auto Top-Up (defined below), shall be referred to as “Purchased Credits.”
(b) Free Grant of Credit. The Company may, at its sole discretion, from time to time, grant Credits and deposit them in the Licensee’s account free of charge to Licensee. Any Credits deposited by the Company free of charge shall be referred to as “Non-Purchased Credits.”
(c) Use of Credit; Expiration. Licensee may use the Credit to access and use Clusters at any time. However, Purchased Credits must be used within five (5) years from the date of purchase, after which they will expire and be removed from Licensee’s account automatically without any further notice. Non-Purchased Credits must be used within two (2) years of their date of deposit, after which they will expire and be removed from Licensee’s account automatically without any further notice. The Company reserves the right to remove Non-Purchased Credits from Licensee’s account prior to their expiration.
(d) Account Balance; Auto Top-Up. The minimum balance for any account shall be USD$10.00. In the event that Licensee’s balance drops below USD$10.00, the Company shall charge Licensee an amount agreed upon by Licensee and the Company using Licensee’s provided billing and contact information and add the amount to the account balance (“Auto Top-Up”). Should the Company fail to Auto Top-Up an account’s balance due to Licensee’s failure to keep Company apprised of changes in billing and contact information, Licensee’s access to Clusters shall be rescinded automatically without need for any further notice until Company can properly charge Licensee for Auto Top-Up purposes.
(e) Refunds. Both validly deposited Purchased and Non-Purchased Credits are non-refundable for any reason, including, without limitation to, the Licensee’s termination of subscription service of or discontinuation of use of Licensed Software. Nonetheless, any Credits that are deposited without Licensee’s consent by the Company’s system or clerical error may be refundable within five (5) business days from License’s written request to the Company at [email protected]
(f) Non-assignment of Credits. Licensee may not share, assign, or transfer Credits, whether Purchase or Non-Purchased Credits, with or to any third-party person or entity.
TERMINATION AND SURVIVAL. The License is effective for thirty (30) days. Notwithstanding anything contrary hereto, the Company may terminate the License upon notice for failure to comply with any of the license terms. Upon the termination, Licensee must immediately cease all use of the Licensed Software and destroy the Licensed Software, including all copies, adaptations, and merged portions in any form. The provisions of Sections 4, 5, 6, 7, 10, and 11 shall survive the termination of this Agreement for any reason.
GENERAL PROVISIONS.
(a) Entire Agreement; Amendment. This Agreement, together with the Terms of Use and Privacy Policy, the Statement of Work, and other terms or agreements agreed to in writing by the Parties prior to or contemporaneously with the execution of this License Agreement, contains all of the terms and conditions of use of the Licensed Software and supersedes any prior understandings or agreements, whether oral or written, between the Parties. Each Party represents and warrants to the other that he/she/it is not relying on any representations made before or outside of the above-described agreements and documents. This Agreement may not be amended or modified except by an express written agreement signed by both of the Parties.
(b) Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
(c) Choice of Law. All questions concerning the construction, validity, and interpretation of this Agreement and any dispute resolution shall be governed by the internal law, without regard to conflict of law principles, of the State of California.
(d) Export. The Licensed Software may be subject to US export control law, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(e) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Interpretation and Understanding. This Agreement shall be interpreted in accordance with the plain meaning of its terms and no part of this Agreement shall be construed strictly for or against either of the Parties for any vagueness or ambiguity. The Parties represent and warrant that (i) each of them has carefully and completely read, and fully understands all the provisions of this Agreement, has had an opportunity to consult with a legal counsel or actually consulted with a legal counsel, and voluntarily, knowingly, and willingly intends to be legally bound by the same; (ii) the terms of this Agreement were determined through negotiation between the Parties themselves and this Agreement is mutually drafted by the Parties; and (iii) in executing this Agreement, each of the Parties does not rely and has not relied upon any representation or statement made by the other Party, or by the other Party’s agents, attorneys, or representatives with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement.
(g) Arbitration. All claims, disputes, controversies, or disagreements of any kind whatsoever arising out of or relating to this Agreement or the Licensed Software, excluding legal action taken by the Company to collect or recover damages for, or obtain any injunction related to Section 2 or Section 3 of this Agreement, shall be settled solely by confidential binding arbitration in accordance with the commercial arbitration rules of JAMS then existing. The arbitration shall be conducted in California and to the extent permitted by law, each party shall bear one-half of the arbitration fees and costs incurred through JAMS, subject to reimbursement by the losing party to the prevailing party as set forth in Section 7(i)
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE LICESNED SOFTWARE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. LICENSEE AGREES THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
(h) Attorney Fees. If any legal action or proceeding or alternative dispute resolution proceeding, including arbitration as set forth in Section 7(h), is necessary to enforce or interpret the terms of this Agreement, or to recover damages for breach of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, as well as costs and disbursements (including expert witness fees), in addition to any other relief to which the prevailing party may be entitled.
(i) Non-Waiver. The failure by the Company at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The Company’s waiver of Licensee’s default shall not be deemed a continuing waiver, but it shall apply solely to the instance to which such waiver is directed.
(j) Assignment; Successors and Assigns. The Company may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity, which purchases or otherwise succeeds to the business of the Company to which this Agreement pertains. Licensee may not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the Company. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
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