BY ACCEPTING THIS AGREEMENT BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND NOT USE THE SERVICES.
Capitalized terms shall have the meanings set forth in this Section 1, or in the section where they are first used.
1.1. “Aggregated Data” means data and information related to Customer’s use of the Services that is used by Reka in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Applicable Privacy Laws” means data protection and privacy laws and regulations applicable to Reka, in its provision of the Services, including, but not limited to, where applicable, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation (“GDPR”), and the e-Privacy Directive (Directive 2002/58/EC).
1.3. “Authorized User” means any individual who is an employee or independent contractor of Customer, or such other individual, as may be authorized by the Customer to use the Services pursuant to Customer’s rights under this Agreement.
1.4. “Connected Application” means any software, large language model, or application owned or controlled by Customer that is connected to, or integrated with, the Services, by or on behalf of Customer.
1.5. “Connected Application Data” means any data collected from, or provided by, any Connected Application.
1.6. “Customer Content” means, other than Aggregated Data, Connected Application Data, and any other data provided, uploaded or transmitted to the Services by Customer.
1.7. “Derivative Models” means a derivative model generated by Customer or an Authorized User using a Customer-owned model or Customer-controlled third-party model through the Software or Services.
1.8. “Documentation” means Reka-provided user documentation, in all forms, relating to the Services and Software in hard copy or electronic form (e.g., user manuals and online help files).
1.9. “Hosted Services” means the software-as-a-service offering(s) (including access to the Software) described on one (1) or more Order Forms referencing this Agreement.
1.10. “Integration Tools” means any coding, programming or design techniques, architecture, methodology, APIs, extensions, functions, software code, applications, scripts, templates, knowledge, experience, and know how developed by Reka in the performance of any professional services related to the integration, implementation, connection and/or onboarding of any Connected Application. For clarity, Integration Tools do not include Connected Applications or any confidential information of Customer.
1.11. “Order Form” means an ordering document that is signed by both parties identifying the Services to be made available by Reka pursuant to this Agreement.
1.12. “Personal Data” has the meaning given in the Applicable Privacy Laws.
1.13. “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
1.14. “Services” means Reka’s provision of: (1) the Software and/or Hosted Services; (2) the Integration Tools; and (3) any related services, including as made available through the Software.
1.15.“Software” means Reka’s multimodal artificial intelligence (“AI”) model.
1.16. “Supported Environment” means the minimum hardware, software, and connectivity configuration requirements for Customer systems in order to: (ii) in the case of the Hosted Services, to access and use the Services; and (ii) in the case Customer is hosting the Software, deploy, and operate the Services, as specified from time to time by Reka. The current requirements are set forth in the Documentation and additional requirements may be set forth on the applicable Order Form.
2. PROVISION OF SERVICES.
2.1. License Grants:
(a) Access to and Use of Hosted Services.
Reka grants a non-exclusive, non-transferable license during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein, (i) to access and use Hosted Services; and (ii) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Hosted Services.
Reka shall, at its expense, provide for the hosting of the Hosted Services, provided that nothing herein shall be construed to require Reka to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Hosted Services.
(b) Self-Hosted License:
Reka grants to Customer a non-exclusive, non-transferable license during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein, (i) to download, install, operate and execute (in object code form only) the Software and Integration Tools within the Supported Environment, as required for the use of the Services (including to integrate with Connected Applications) and in accordance with the Documentation for internal business use only; and (ii) to reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Software.
2.2. Personal Data.
Before providing to Reka or otherwise enabling Reka to Process any Personal Data, Customer will enter into a Data Processing Addendum (“DPA”) with Reka. If Customer has not entered into a DPA, Customer represents, warrants and covenants that no Personal Data will be provided to or Processed by Reka under this Agreement. Any Processing of Personal Data by Reka that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
2.3. Connected Applications.
In order to receive the benefit of certain features and functions of the Services, Customer will need to link or otherwise connect or integrate its Connected Applications to the Services. By connecting any Connected Application to the Software, (i) Customer represents and warrants that it is entitled to link or otherwise connect and provide access to the Connected Application to the Software, (ii) Customer represents and warrants that it is in good standing with respect to such Connected Applications and not in breach of any agreement between Customer and the provider of any such Connected Application, and (iii) Customer acknowledges and agrees that Reka may access Connected Application Data so that it may be used in accordance with the terms of this Agreement. Customer further acknowledges and agrees that each Connected Application, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Application. Reka will have no liability for any unavailability or failure of any Connected Application, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Application. Customer acknowledges and agrees that in order to properly onboard to the Services and make full use of features and functions of the Services, Customer will need to integrate or connect to Connected Applications with the Services. The Software has certain prebuilt integrations readily available as well as Integration Tools that may be made available by Reka. Customer acknowledges that Reka has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Applications or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Application Data.
2.4. Reka Tools.
Subject to this Agreement, Reka makes available to Customer certain AI tools in connection with its use of the Services (collectively, the “Reka Tools”). Except where expressly specified otherwise in this Agreement, the Reka Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the Reka Tools. The Reka Tools leverage certain large language models and AI algorithms to generate ideas and answer basic questions (collectively, the “Output”) in response to Customer’s prompts (“Prompts”). Customer acknowledges that the Outputs are based on its Prompts, and that Reka has no control over any such Prompts. Accordingly, all Outputs are provided “as is” and with “all faults”, and Reka makes no representations or warranties of any kind or nature with respect to any Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. Customer is solely responsible for its use of any Outputs created through the Services, and Customer assumes all risks associated with its use of any Outputs, including any potential copyright infringement claims from third parties or any disclosure of such Outputs that personally identifies Customer or any third party. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES.
3.1. Specific Terms for Self-Hosted Customer:
(a) Setup Responsibilities.
Customer shall be responsible for obtaining and maintaining, at Customer’s expense, the Supported Environment. In the event that Reka assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
(b) Integration with Supported Environment.
The Integration Tools are designed to allow Customer to integrate and/or connect the Software into a Supported Environment. Customer is solely responsible for determining if a Supported Environment is appropriate for use with the Services. If Customer provides Reka with access to any application programming interfaces (APIs), API keys or other credentials for the purpose of connecting or integrating the Software with the Supported Environment, then Customer represents and warrants that it has obtained all necessary consents, permissions, approvals, or licenses to access and use, and permit Reka to access and use, the same for the purpose of performing its obligations and exercising its rights under this Agreement. Customer is solely responsible for any Supported Environment that Customer chooses to integrate with the Software and Customer assumes all risks associated with use of the Supported Environment.
3.2. Customer Responsibility for Data and Security.
Customer shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords required in order to use the Services. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. In the ordinary course of its business, Reka performs back-ups of Customer Content; however, Reka is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Content.
Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein. Customer acknowledges and agrees that the Services, Software, and Documentation will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software. Customer shall always comply with all international and domestic laws, ordinances, regulations, mobile carrier policies, industry rules, and statutes that are applicable to its access to or use of the Software or Services hereunder.
3.4. Responsible Use of Reka Tools.
Customer shall comply with all obligations and commitments in the Agreement with respect to Customer Content in connection with Customer’s use of the Reka Tools. Customer is solely responsible for the Prompts, its Outputs and its use thereof. Without limiting the disclaimers in Section 7 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer’s representations and warranties under the Agreement, Customer shall not use any Prompts or Output that: (a) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Services; or (d) contain any personal information, such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers. Reka reserves the right to suspend or terminate Customer’s access to the Reka Tools for any failure by Customer or an Authorized User to comply with this Section. In addition to the foregoing, Customer’s obligations under the Agreement with respect to use of the Services, its representations and warranties and indemnification obligations, shall apply in full with respect to Customer’s use of the Reka Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the Reka Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
The Services, Software, Documentation and Integration Tools, including all enhancements, modifications, and improvements thereto, and all worldwide intellectual property rights in each of the foregoing (collectively, the “Reka Technology”), are the exclusive property of Reka and its suppliers. All rights in and to the Reka Technology not expressly granted to Customer in this Agreement are reserved by Reka and its suppliers. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for Reka to use the Customer Content to provide the Services. Customer grants Reka a non-exclusive, worldwide, royalty-free and fully paid license during the Order Term to use the Customer Content as necessary for purposes of providing and/or improving the Services. All rights in and to the Customer Content not expressly granted to Reka in this Agreement are reserved by Customer. Notwithstanding anything to the contrary in this Agreement, Reka may monitor Customer’s use of the Services and collect and compile Aggregated Data. As between Reka and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Reka. Customer acknowledges that Reka may compile Aggregated Data based on Customer Content and may use all Aggregated Data to improve Reka’s machine learning model and artificial intelligence algorithms (collectively, “Models”). All right, title, and interest in and to the Models are retained by Reka. For the avoidance of doubt, as between Reka and Customer, all right, title, and interest in and to any models provided or deployed by Customer within the Software or Services (including any third-party models), and any Derivative Models, will be owned by Customer. Customer agrees that Reka may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer’s Confidential Information. Customer hereby assigns to Reka any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Authorized Users related to the Reka Technology (“Feedback”).
5. FEES AND EXPENSES; PAYMENTS.
5.1. Fees and Expenses.
Customer shall pay to Reka, without offset or deduction, the fees and expenses as determined under any Order Forms and this Agreement. Reka reserves the right to increase the fees under each Order Form following the Initial Order Term, and each Renewal Order Term thereafter, but must provide notification of such increases at least thirty (30) days prior to the end of the Initial Order Term or then-current Renewal Order Term. Except as set forth on an Order Form, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Reka. The fees and other amounts payable by Customer to Reka do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Reka’s net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse Reka for any taxes payable or collectable by Reka (other than taxes based upon Reka’s net income). In the event that Customer’s account is more than thirty (30) days overdue on any payment for any reason, Reka shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Proprietary Items, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
5.2. Payment Terms.
Reka may accept and process payment (including renewals) from Customer by either credit card (e.g., Visa, MasterCard, or any other issuer accepted by Reka), wire transfer, or check, as mutually agreed on the applicable Order Form. If any Customer payment is more than thirty (30) days past due, interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars.
6. WARRANTIES AND DISCLAIMERS.
6.1. Mutual Warranties.
Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, REKA MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AGGREGATED DATA, SERVICES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS.” REKA DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, OR SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE AI TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE MEDICAL, LEGAL, ACCOUNTING, OR OTHER ADVICE OF A CERTIFIED OR QUALIFIED PROFESSIONAL AND REKA MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. REKA DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE AI TOOLS LEVERAGE THIRD-PARTY SERVICES AND THAT REKA IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD REKA LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE AI TOOLS AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
6.3. Customer Warranty.
Customer represents and warrants to Reka that: (1) Customer owns the Customer Content and/or Connected Application Data, or has the necessary licenses, rights, consents, and permissions to authorize Reka to use the Customer Content and/or Connected Application Data in accordance with this Agreement; (2) Customer Content and the use of Customer Content as contemplated by this Agreement does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (c) violate, or cause Reka to violate, any law or regulation; (d) be deceptive, obscene, pornographic or unlawful; and (e) contain any viruses, worms or other malicious computer programming codes intended to damage Reka’s system or data; and (3) Customer will use the Services and Software in compliance with the Documentation, any instructions provided by Reka, and applicable law. Reka may monitor Customer’s use of the Services and may prohibit any use of the Services or Software it believes may be in violation of the foregoing warranties or applicable law.
7. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO BREACHES OF CONFIDENTIALITY UNDER SECTION 9, MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (COLLECTIVELY, “EXCLUDED LIABILITY”), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS SECTION WILL APPLY SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WITH RESPECT TO EXCLUDED LIABILITY, THE MAXIMUM LIABILITY OF REKA ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO REKA DURING THE TWELVE (12) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
“Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how related to the disclosing party’s business; or (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential, all disclosed prior to or during the term of the Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information. The receiving party shall not use the disclosing party’s Confidential Information for any purpose other than the purposes of exercising such party’s rights or performing such party’s obligations under Agreement. The receiving party shall only disclose the disclosing party’s Confidential Information to its employees, personnel, agents, or contractors who have a need to know such information for the purposes of exercising such party’s rights or performing such party’s obligations under the Agreement and who are bound by written obligations of confidentiality and non-use at least as restrictive as those contained in the Agreement.
9.1. By Reka.
Reka will indemnify and hold harmless, at its own expense, Customer from and against any and all threatened third-party claim, proceeding, or suit (each, a “Claim”), and pay all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees), arising out of or relating to infringement by the Documentation or Services of a third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Documentation or Services becomes, or in Reka’s opinion is likely to become, the subject of a claim of infringement, Reka may, at Reka’s option: (a) procure for Customer the right to continue using the Documentation or Services; (b) replace the Documentation or Services with non-infringing software or services which do not materially impair the functionality of the Documentation or Services; (c) modify the Documentation or Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Documentation or Services. Notwithstanding the foregoing, Reka will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Documentation or Services in combination with other products, equipment, software or data not supplied by Reka; or (iii) any modification of the Documentation or Services by any person other than Reka or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of Reka, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2. By Customer.
Customer will indemnify and hold harmless, at its own expense, Reka and its affiliates, employees, directors, and agents from and against any and all Claims, and pay all liabilities, losses, damages costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to (a) Customer’s breach or alleged breach of Section 4, or (b) Customer’s use of the Prompts and/or Outputs, and/or (c) Customer Content and/or Connected Application Data.
The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnifying party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnified party shall not agree to settle any such claim without the indemnifying party’s express prior written consent. The indemnified party may participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense of the Claim.
10. TERM AND TERMINATION.
10.1. Term and Termination.
This term of this Agreement will commence on the Effective Date and will continue in full force and effect, unless earlier terminated in accordance with the Agreement. Unless otherwise stated in the applicable Order Form, the Order Term will continue in full force and effect for one (1) year (“Initial Order Term”), unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year (each, a “Renewal Order Term” and together, the “Order Term”)), unless either party gives written notice of non-renewal to the other party no later than ninety (90) days prior to the expiration of the then-current Initial Order Term or Renewal Order Term. Either party may terminate this Agreement or any Order Form immediately upon notice to the other party if the other party materially breaches this Agreement or the applicable Order Form, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.2. Effect of Termination.
Expiration or termination of this Agreement will automatically terminate all active Order Forms, but termination of a single Order Form will not result in termination of this Agreement or any other Orders Form. Upon the expiration or termination of this Agreement or an Order all rights and licenses granted by Reka to Customer under this Agreement or the applicable Order Form will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
10.3. Post-Termination Obligations.
Unless Customer terminates this Agreement for material breach, if this Agreement expires or is terminated: (1) Reka will not refund Customer any Fees paid in advance of such expiration or termination, including pre-paid Fees; and (2) within ten days after such expiration or termination, Customer shall pay Reka all remaining Fees set forth under any terminated Order Forms so that Reka is paid the full amount agreed to at the commencement of such Order Term (as if the Order Term had run its full course). Sections 1, 3, 4, 6.2, 7, 8, 9, 10.2, 10.3 and 11 will survive expiration or termination of this Agreement for any reason.
The parties are independent contractors. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed below, by courier, by registered or certified mail (postage prepaid and return receipt requested), or by a nationally recognized express-mail service. Notice will be effective upon receipt or refusal of delivery. Customer may not assign this Agreement without the prior written consent of Reka. Any purported assignment in violation of the foregoing shall be null and void. This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. The parties hereby submit to the personal jurisdiction of the state and federal courts in Santa Clara County, California. If any provision of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law, and the validity of the remaining provisions hereof shall not be affected thereby. Customer agrees that it will not assist with or participate in any export or re-export of the Software or associated documentation in violation of applicable U.S. laws or regulations. No amendment to, or waiver of rights under, this Agreement shall be effective unless in a writing signed by authorized representatives of each party. This Agreement, including any Order Forms, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. This Agreement may be executed in multiple counterparts (including by DocuSign) which will constitute one document.