This END USER LICENSE AGREEMENT (the “Agreement”) is entered into by and between Customer and Ivy House, Inc. (“Ivy”) a Wyoming corporation with offices at 406 South Jordan Parkway, Suite 140, South Jordan, UT 84095. “Customer” shall refer to any entity that enters into an Order Form with a third-party reseller of the Services (“Reseller”) that references this Agreement, and the date of the first such Order Form between the Parties is referred to herein as the “Effective Date.” Customer and Ivy are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Authentication Key” means any access key, application key or authentication key necessary for utilizing an Authorized API.
“Authorized API” means the application programming interfaces developed and enabled by Ivy that permit Customer to access certain functionality provided by the Services.
“Beta Services” means the features and/or functionality of the Services that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Ivy’s Confidential Information shall include the Ivy Property. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Customer Property” means any content (including text, images, illustrations, charts, tables and other materials) supplied by Customer to Ivy, either directly through the Service or indirectly through the integration with a Third Party Product.
“Documentation” means all documentation and other instructional material made available by Ivy regarding the use of the Services.
“Ivy Property” means (i) the Services, (ii) the Documentation, and (iii) all content and other materials and software supplied by Ivy in connection with, or used by Ivy in providing, any Services.
“Order Form” means an ordering document for Services between Reseller and Customer, which has been executed by Reseller and Customer or electronically accepted by Customer.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure or destruction.
“Subprocessor” means any third-party data processor engaged by Ivy, including Ivy’s Affiliates, that receive Customer Property from Ivy for Processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by Ivy) and the terms of its written subcontract.
“Services” means the software services and platform provided by Ivy, including (i) the web and other user interfaces, applications, and software provided to Users, (ii) the Authorized APIs and (iii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
“Subscription Term” means the subscription period set forth in the applicable Order Form during which Ivy agrees to provide the Services to Customer.
“Third Party Products” means certain third party applications, systems, or services used by Customer, but not supplied by Ivy, that are designed to interoperate with the Services (for example, third-party ticketing and email services from which the Services can import Customer Property).
“Users” means all users that are authorized to access Customer’s account on the Services.
(a) Provision of Services. Subject to the payment of all applicable fees to the Reseller and for the applicable Subscription Term, Ivy hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Services in accordance with the terms and conditions of this Agreement and the applicable Order Form.
(b) [Intentionally omitted]
(c) Platform Guidelines. Customer hereby acknowledges that it will at all times comply with, and ensure that all of its Users comply with, the platform guidelines set forth on Exhibit A, which are hereby incorporated by reference (the “Platform Guidelines”).
3. [Intentionally omitted]
4. Proprietary Rights
(a) Customer Property. As between Customer and Ivy, Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to Ivy or implied hereby, and for any Customer
Property that is licensed to Ivy, no title or ownership rights are transferred to Ivy with such license.
(b) Ivy Property. As between Ivy and Customer, Ivy retains all right, title, and interest in and to the Ivy Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Ivy Property. Except as expressly set out in this Agreement, no right, title, or license under any Ivy Property is granted to Customer or implied hereby, and for any Ivy Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license.
(c) Licenses to Ivy. Customer hereby grants Ivy a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Customer Property made available to Ivy or any of its Affiliates, solely as necessary for Ivy to (i) provide the Services to Customer pursuant to this Agreement, and (ii) train the artificial intelligence models developed by Ivy and its third party service providers to provide the Services, provided, however, that such Customer Property used for this purpose must be aggregated and de-identified so that it cannot identify Customer or its Users. Additionally, Customer grants Ivy a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services; provided that, Customer may revoke such consent at any time in its sole discretion. By submitting to Ivy any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Services ("Feedback"), Customer and its Users (as applicable) grant to Ivy a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Services in any manner.
(d) License to Customer. Ivy hereby grants Customer a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Output made available to Customers or any of its Affiliates, solely in accordance with the terms of this Agreement. “Output” means the output generated and returned by the Services based on the inputs to the Services provided by Customer and its users. For the avoidance of doubt, “Services” shall not be deemed to include the Output.
5. Data Privacy and Security
(a) Hosting and Processing. Unless otherwise specifically agreed to in writing by Ivy, Customer Property may be hosted by Ivy or its Affiliates, or their respective authorized third-party service providers, in the United States, the European Economic Area (“EEA”) or the United Kingdom.
(b) Transfer of Personal Data. To the extent that Personal Data within the Customer Property originates from a User or End-User in the EEA, as further described in the DPA, Ivy will ensure that, pursuant to (i) the EU Regulation 2016/679 and any applicable national laws made under it; and (ii) the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded), if Personal Data within Customer Property is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (i) the non-EEA country in question ensures an adequate level of data protection based on a decision by the European Commission; (ii) one of the conditions listed in Article 46 or 49 of the GDPR (or its equivalent under any successor legislation) is satisfied; or (iii) the Personal Data is transferred on the basis of binding corporate rules.
(c) Data Processing Agreements. The Data Processing Agreement with Ivy (“DPA”) can be executed here: Ivyhouse.io/dpa. Upon execution by Customer, the DPA shall be hereby incorporated by reference herein and become a part of this Agreement.
(d) Subprocessors. Customer acknowledges and agrees that Ivy may use Subprocessors, who may access Customer Property, to provide, secure and improve the Services. Ivy shall be responsible for the acts and omissions of its Subprocessors to the same extent that Ivy would be responsible if Ivy was performing the services of each Subprocessor directly under the terms of this Agreement. A list of all Subprocessors can be found here: https://www.Ivyhouse.io/sub-processors.
(a) Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information. This Section 6 shall supersede any non-disclosure agreement by and between Customer and Ivy entered prior to the Effective Date that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to either Party’s Confidential Information.
(b) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
(c) Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, (x) Ivy, as Receiving Party, shall not be required to delete any Customer Confidential Information that is licensed to Ivy pursuant to Section 4(c)(ii) so long as it is aggregated and de-identified so that it cannot identify Customer or its Users; and (y) the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
7. Warranties; Disclaimers
(a) Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
(b) Ivy Warranties. Ivy warrants to Customer that the Services purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).
(c) Customer Warranties. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party.
(d) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) IVY’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. IN ADDITION, IVY DOES NOT GUARANTEE THERE WILL BE NO LOSS OR CORRUPTION OF CUSTOMER PROPERTY STORED BY IVY. CUSTOMER AGREES TO MAINTAIN A COMPLETE AND ACCURATE COPY OF ALL CUSTOMER PROPERTY IN A LOCATION INDEPENDENT OF THE SERVICES.
(e) Beta Services. Ivy may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered “Services” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by Ivy); however, all restrictions, Ivy’s reservation of rights and Customer’s obligations concerning the Services, and use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by Ivy. Ivy may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS'' with no express or implied warranty and are outside the scope of Ivy’s indemnification obligations.
(a) Indemnification by Ivy. Ivy will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the Services in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Services is likely to, in Ivy’s sole opinion, or does become the subject of an Infringement Claim, Ivy may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and refund to Customer prepaid unused fees for the infringing items that Ivy received from Reseller. Ivy shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to Ivy of any Customer Property; (2) use of the Services in combination with any software, hardware, network or system not supplied by Ivy if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Ivy); or (4) the content that is output from the Services, or (5) Customer’s violation of applicable law or third party rights.
(b) Indemnification by Customer. Customer will defend and pay Ivy, its employees, directors and officers (the “Ivy Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Ivy Indemnified Party, arising from any Third Party Claim against a Ivy Indemnified Party (i) alleging that any Customer Property or Customer’s use of the Services beyond the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party or (ii) arising from Customer’s breach of the Platform Guidelines.
(c) Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 8, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
9. Limitation of Liability
(a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IVY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY RECEIVED BY IVY FROM RESELLER IN CONNECTION WITH THE SERVICES SOLD TO CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(b) Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
10. Term and Termination
(a) Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 10(c).
(b) Term of Subscriptions. Customer’s access to the purchased Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form.
(c) Termination. Either Party may terminate this Agreement by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days, continuously.
(d) Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. In the event of termination of this Agreement, Customer shall cease all use of the Services.
(e) Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3, 4(a), 4(b), 4(d), 6,
7(d), 8, 9, 10(d), 10(e), 11, and Exhibit A. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
11. Miscellaneous Provisions
(a) Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Ivy will be considered an independent contractor when performing any Services hereunder.
(b) [Intentionally omitted]
(c) Entire Understanding. This Agreement (including the DPA (if applicable) and all Exhibits) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of Agreement shall prevail.
(d) Modification; Waiver. Except for Ivy’s modification or update of the Documentation or the Service, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties.
(e) Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in Austin, Texas (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of Wyoming. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
(f) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
(g) Notices. Except for notification methods expressly permitted under the Platform Guidelines, all notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses provided by Customer to Ivy in writing. Notices to Ivy shall be addressed to: Ivy House, Inc., Attn: Legal Department, 206 South Jordan., Suite 140 , South Jordan, UT 84095, with a copy to legal@Ivyhouse.io. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
(h) Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Ivy employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify Ivy if it offers or receives any such improper payment or transfer in connection with this Agreement.
(i) Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Ivy not being able to provide the Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.
(j) Export Control. The Service and related technical data and services (collectively, "Controlled Technology") may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.
(l) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
(1) (i) Each User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Services; and (ii) User IDs are intended for use by the designated Users only and cannot be shared. Customer agrees to provide accurate, current and complete account and User information. Customer is responsible for ensuring the security and confidentiality of all User IDs assigned to Customer and its Users. As a part of the Service, Users are given the ability to add other Users to their accounts and enable other Users to access or modify Customer Property included in such account. Customer is solely responsible for managing which Users have access to such Customer Property and for any actions taken by such Users with respect to Customer’s account and Customer Property.
(2) Ivy is not responsible for the content submitted by Customer or its Users to the Service (“Content”). Customer is solely responsible for the Content and for all activity that occurs under its account. Customer and its Users may not transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, Content that is: (i) unlawful or promoting unlawful activity; (ii) defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups; (iii) spam, machine – or randomly – generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; (v) infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights; (vi) impersonating any person or entity including Ivy and its employees or representatives; (vii) violating the privacy of any third person; (viii) false; or (ix) sexual, religious or political in nature. The Company reserves the right, but does not have any obligation, to, in its sole discretion, determine whether or not any Content is appropriate and complies with this Agreement, and to refuse or remove such Content. Ivy further reserves the right to make formatting changes, edits and otherwise modify any Content. Ivy can also limit or revoke the use of the Service if Customer or any User posts such objectionable Content. As Ivy cannot control all content posted by users and/or third parties on the Service, Customer agrees to use the Service at its own risk. Customer acknowledges, on behalf of itself and its Users, that by using the Service Users may be exposed to content that they may find offensive, indecent, incorrect or objectionable, and under no circumstances shall Ivy be liable in any way for any content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of Customer’s or any User’s use of any content.
(3) Except for uses that are expressly permitted by Ivy (for example, in the Documentation), Customer will not, and will ensure that Users do not: (i) sell, resell, rent, lease, or otherwise distribute any portion of the Service; (ii) use the Services other than in accordance with the Documentation or in a manner that interferes with, unduly burdens, or disrupts the integrity, performance, or availability of the Service (for example, by conducting load tests or penetration tests without Ivy’s prior written consent); (iii) attempt to gain unauthorized access to the Services or to Ivy’s or its third party suppliers’ related systems or networks; (iv) access any portion of the Services for the purpose of building a similar or competitive product or service, or monitor the Services for any benchmarking or competitive purpose; (v) introduce, disseminate, or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam, or malicious code using the Service; (vi) copy, modify, translate, or create a derivative work of any Ivy Property; (vii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems included in the Ivy Property (except to the extent such restrictions are contrary to applicable law); (viii) except for contact information consisting of first name, last name, IP address and email address for which Customer has obtained necessary rights of access and use from the individual, Customer agrees not to submit other Personal Data or any sensitive personal information (including government issued identification numbers, financial account information, payment card information, and personal health information) to the Services; (ix) mislead any person that the Output from the Services was human generated; (x) use the Services to generate spam, content for dissemination in electoral campaigns, content that encourages violence, terrorism, or other serious harm or (xi) alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Services. Customer may not access the Services if it is a direct competitor of Ivy, except with Ivy’s prior written consent.
(4) Customer shall use the Authorized APIs in accordance with the Documentation, and will promptly correct any usage of Authorized APIs that does not comply with the Documentation. Authentication Keys must be restricted to use by authorized personnel of Customer who have a need to use it for purposes of integrating the Services with other web applications. Customer is solely responsible for maintaining the security of all Authentication Keys and for all activities that occur using any Authentication Key issued to Customer and must promptly notify Ivy of any unauthorized use. The Authentication Keys are the property of Ivy and may be revoked by Ivy in connection with any permitted suspension of Customer’s right to use an Authorized API.
(5) A high-speed Internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Services, including, but not limited to, “browser” software that supports protocols used by Ivy, including Secure Socket Layer (SSL) protocol or other protocols accepted by Ivy, and to follow procedures for accessing services that support such protocols. Ivy is not responsible for notifying Customer or its Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer Property, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Ivy. Ivy assumes no responsibility for the reliability or performance of any connections as described in this section.
(6) Ivy will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material submitted through Customer’s account, and will respond appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws.
(7) Ivy reserves the right to monitor the use of the Services for security and operational purposes and make modifications to the features and functionality of the Services during the Subscription Term. Ivy may immediately suspend or throttle access to the Services if (i) Ivy reasonably believes that a User or Customer is in breach of this Agreement; (ii) a User or Customer engages in excessive utilization of the Services which affects, or could reasonably likely (in Ivy’s opinion) affect, system availability or performance, or (iii) if Ivy in good faith suspects that any third party has gained unauthorized access to the Services using a credential issued by Ivy to Customer or its Users. In addition, Ivy may temporarily suspend access to the Services during planned downtime for upgrades and maintenance (of which Ivy will use commercially reasonable efforts to provide Users notice in accordance with paragraph 9 below). Ivy shall not be liable to Customer, any Users or any other third party for any such modification, suspension or discontinuation of Customer’s rights to access and use the Services.
(8) Artificial intelligence and machine learning models can improve over time to better address specific use cases. Customer agrees and instructs that as part of providing and maintaining the Services, Ivy may use Customer Property to develop and improve the Services. This improvement may involve sending select portions of Customer Property to third party contractors (subject to confidentiality and security obligations which are substantially consistent with those set forth in this Agreement) solely for the purpose of providing data annotation services to Ivy and its third party service providers in connection with Ivy’s operation of the Services, with Ivy being responsible for all actions and omissions of such contractors. For the avoidance of doubt, the Customer Property will not be used except as described in this paragraph or Section 4(c) of the Agreement. In addition, Customer acknowledges that due to the nature of machine learning, the Output may not be unique and the Services may generate the same or similar output for Ivy or a third party.
(9) Ivy may use data concerning Customer’s or its Users’ use of the Services in an aggregated and anonymous manner (“Usage Information”), including but not limited to compiling statistical and performance information related to the operation of the Services and Customer’s and its Users’ inputs to the Service which are used to train the artificial intelligence models utilized by the Services. Ivy shall have the right to use Customer Property to improve the Service and to develop additional offerings. The foregoing shall not limit, in any way, Ivy’s confidentiality obligations as set forth in Section 6 of the Agreement. Customer agrees that Ivy may make such information publicly available, provided that (i) such information does not incorporate any Customer Property and (ii) such use does not identify Customer or any Users either directly or indirectly. Ivy retains all intellectual property rights in Usage Information.
(12) Customer acknowledges that the Services utilize services provided to Ivy by OpenAI, LLC (“OpenAI”), which are governed by, among other things, OpenAI’s Usage Guidelines, Sharing & Publication Policy, Community Guidelines, and Content Policy (collectively, the OpenAI Policies). Customer shall not use the Services in a manner which shall cause Ivy to be in violation of any OpenAI Policy. In addition, Customer shall comply with Ivy’s Fair Use Policy and is otherwise prohibited from engaging in abnormally high usage. For any illegal activity of sharing login details of your account with others, Customer’s account may be blocked or permanently deleted without any notice. No claim of any sort in this regard will be accepted and no refunds will be issued. By using the Services, Customer acknowledges and agrees that any claims/disputes in this regard raised by Customer or by its bank will be automatically rejected.