1. TERMS OF SERVICE
1.1 The Terms of Service (the “Terms”) are entered into between RapidFire AI, Inc. (“RapidFire AI”) and the entity that has executed an Order Form that references and incorporates these Terms by reference (“Customer”), and governs Customer’s access to and use of the Services (as defined below). An “Order Form” means any written order form or other ordering document signed (including by electronic means) by RapidFire AI and Customer referencing these Terms, and containing the pricing, subscription term, and other specific terms and conditions applicable to Customer’s access to and use of the Services. These Terms and the Order Form constitute the complete understanding between the parties on the subject matter (“Agreement”) and is effective on the date that the Order Form is fully executed by the parties (“Effective Date”). In the event of any conflict between the Order Form and these Terms, the Order Form will control. By entering into an Order Form and/or otherwise accessing or using the Services, Customer agrees to be bound by these Terms and the other terms and conditions of the Agreement. If Customer does not accept these Terms, Customer is not authorized to access or use the Services. Capitalized terms not otherwise defined in the body of these Terms are defined in Section 10.
1.2 Services
a) License Grant. Subject to the terms and conditions of this Agreement, RapidFire AI grants to Customer a non-exclusive, non-transferable license, without the right to sublicense, during the term of Customer’s subscription, solely for Customer’s internal business purposes (a) to access and use the Services in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services.
b) Compute Limits. Certain Services may impose Compute Limits based on subscription tiers. In the event that Customer wishes to increase the Compute Limit, Customer shall be required to pay additional fees associated with the increased pricing tier, prorated for the remainder of the then-current subscription term.
c) Updates. During the term of this Agreement, RapidFire AI may, in its sole discretion, provide Customer with Updates. In the event of a material Update, RapidFire AI shall promptly inform Customer by email of such Update. Updates (if any) will be deemed to be part of the Services under this Agreement. RapidFire AI is not obligated to provide any Updates to the Services.
d) Support Services. Subject to the terms and conditions of this Agreement, RapidFire AI will exercise commercially reasonable efforts to (a) provide reasonable support for the use of the Services to Customer to the extent documented on the Services from time to time, (b) keep the Services operational and available to Customer, and (c) provide Error Corrections in the event of any Errors, in each case in accordance with its standard policies and procedures as may be made available from time to time through the Services.
e) Early Access, Beta Services and Free Trials. RapidFire AI may make certain Services available on an “early access”, “beta” or free trial basis (“Beta Services”). In the event Customer utilizes or is given access to any Beta Services, Customer acknowledges and agrees that Sections 5.1, 5.3, and 7.1 will not apply to such Beta Services. Beta Services are not generally available and may contain bugs, errors, or defects. Accordingly, and without limitation, RapidFire AI provides Beta Services to Customer “as is”, “where is”, and “with all faults”, and makes no warranties of any kind with respect to the Beta Services, nor does any representation, warranty, service level, or other obligations with respect to the Services described herein apply to Beta Services. RapidFire AI may discontinue Beta Services at any time in its sole discretion and may never make them generally available
f) Accounts. To access or use certain features of the Services, Customer will need to create an account with RapidFire AI (“Account”) and provide certain information as prompted by RapidFire AI. Customer represents and warrant that: (a) all registration information Customer submits is truthful and accurate; and (b) Customer will maintain the accuracy of such information. RapidFire AI may suspend or terminate Customer’s Account in accordance with Section 8. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. Customer is responsible for maintaining the confidentiality of its Account login information and is fully responsible for all activities that occur under its Account, including without limitation the activities of any Authorized Users. Customer agrees to immediately notify RapidFire AI of any unauthorized use or suspected unauthorized use of Customer’s Account or any other breach of security. Without limitation, RapidFire AI will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements.
g) Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to, directly or indirectly: (i) permit any party to access the Services or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (ii) modify, adapt, alter or translate the RapidFire AI Property, except as expressly allowed herein; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (iv) 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 Services; (v) use or copy the Services or Documentation except as expressly allowed under this subsection; (vi) use the Services to conduct or promote any illegal activities; (vii) use the Services for crypto mining; (viii) use the Services to create or disseminate any synthetic and/or manipulated media (e.g., deepfakes); (ix) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (x) create or disseminate any information or materials which is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (xi) engage in conduct which constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (xii) create or disseminate any information or materials which involves commercial activities and/or sales without RapidFire AI’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xiii) impersonate any person or entity, including any employee or representative of RapidFire AI; (xiv) interfere with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement (including, without limitation, interfering (or attempting to interfere) the Services via a denial-of-service or a distributed denial-of-service attack); or (xv) attempt to engage in or engage in, any potentially harmful acts that are directed against the Services (including any internal or external servers which may host the Services), including but not limited to violating or attempting to violate any security features of the Services, consuming extraordinary resources by going far beyond the compute limits for the Services (e.g., non-stop hosting and/or streaming for purposes of gaming, home video, etc.), using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, engaging or attempting to engage in or assist in any hack of or attack on the Services, introducing viruses, spyware, malware, worms, or similar harmful code into the Services that is designed or intended to disrupt, damage, destroy, interfere or otherwise corrupt the administration or security of the Services, or otherwise interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
h) Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from RapidFire AI, or any products (including without limitation software) utilizing such data, in violation of the United States export laws or regulations. In particular, but without limitation, the RapidFire AI Property may not be accessed or used by anyone on the U.S. Treasury Department’s list of Specifically Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By entering into this Agreement and/or using the Services, Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use the Services for any purpose prohibited by applicable law.
2. FEES AND EXPENSES; PAYMENTS
2.1 Fees. In consideration for the use and access rights granted to Customer and the services performed by RapidFire AI under this Agreement, Customer will pay to RapidFire AI all fees charged to Customer’s Account and/or as set forth on a particular Order Form. The prices stated in an Order Form are stated in U.S. dollars and must be paid by wire transfer, credit card, or such other payment method accepted by RapidFire AI, as determined by RapidFire AI in its sole discretion. If Customer provides credit card information to RapidFire AI, Customer authorizes RapidFire AI or its then-current payment processor to charge such credit card for all services listed in the Account for the initial subscription term, and any renewal Customer term(s), and any recurring fees and charges set forth therein.
2.2 Payment Terms. All payment obligations are non-cancellable and all amounts paid are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Without limitation of its other rights and remedies, RapidFire AI shall be entitled to withhold performance and suspend access to and use of the Services until all amounts due are paid in full. RapidFire AI’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on RapidFire AI’s income. Customer agrees to provide RapidFire AI with complete and accurate billing information and contact information. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, RapidFire AI may terminate Customer’s access to the Services in addition to other legal remedies.
2.3 Third-Party Payment Processor. RapidFire AI uses Stripe, Inc. (“Stripe”) or such other third party payment processor as it determines from time to time in its sole discretion as its third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). Customer understands that Stripe’s Privacy Policy: https://www.stripe.com/privacy, or such other third party payment processor’s privacy policy governs the collection, storage and use of information provided in connection with Services payment processing, and hereby consents and authorizes RapidFire AI and Stripe (or such other third party payment processor) to share any information and payment instructions Customer provides with one or more third party service provider(s) to the minimum extent required to complete Customer’s transactions.
2.4 Free Trials and Other Promotions. Any free trial or other promotion that provides access to paid Services must be used within the specified time of the trial. At the end of the trial period, Customer’s use of such Services will expire and any further use of the Service is prohibited, unless Customer pays the applicable subscription fee.
2.5 No Refunds. The amounts paid hereunder are non-refundable. In the event, RapidFire AI, in its sole discretion, issues a refund, such refund will be credited back to the same payment method used to make the payment and are exclusive of any processing fees previously paid by Customer.
3. OWNERSHIP AND CUSTOMER MODELS.
3.1 RapidFire AI Property. As between RapidFire AI and Customer, the RapidFire AI Property, including but not limited to all manuals, reports, records, programs, data and other materials made available by or on behalf of RapidFire, including without limitation in connection with the Services, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of RapidFire AI and its licensors and suppliers. All rights in and to the RapidFire AI Property not expressly granted to Customer in this Agreement are reserved by RapidFire AI and its licensors and suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the RapidFire AI Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Services.
3.2 Customer Models. As between Customer and RapidFire AI, Customer Models and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Models not expressly granted to RapidFire AI in this Agreement are reserved by Customer. Customer hereby grants to RapidFire AI a worldwide, non-exclusive, royalty-free, and fully paid up right and license to use the Customer Models for the purpose of providing the Services. While RapidFire AI has administrative access to each Customer’s Account, which is necessary for RapidFire AI’s provision of the Services, including any technical support, in no event will RapidFire AI access the source code for any such Customer Models in a Customer Account for purposes other than operational purposes, including to provide the Services. Notwithstanding the foregoing, Customer acknowledges and agrees that RapidFire AI may freely use Performance Data for any purpose. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Models. Customer will obtain all third party licenses, consents and permissions needed for RapidFire AI to use the Customer Models to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for RapidFire AI to use the Customer Models submitted by or on behalf of Customer for the purposes set forth in this Agreement. RapidFire AI agrees to use commercially reasonable administrative, physical and technical security measures designed to protect the Customer Models against unauthorized access, use and disclosure. In the event RapidFire AI becomes aware of any security breach relating to Customer Models, RapidFire AI will promptly notify Customer of such data breach.
3.3 Open Source Software. Certain items of software may be provided to Customer with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 1.2(a) or 7. Instead, each item of Open Source Software is licensed under the terms of the end-user license that governs the use of such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, RapidFire AI makes such Open Source Software, and RapidFire AI’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.4 Third Party Providers. Portions of the Services may be provided through third-party providers, which may have a separate agreement with Customer or, if not, may impose certain restrictions or additional terms and conditions (“Third-Party Terms of Service”). If applicable, the Third-Party Terms of Service are incorporated into this Agreement by reference. In the event of conflict between the terms and conditions of the Third-Party Terms of Service and the terms and condition of this Agreement, the terms and conditions of the Third-Party Terms of Service will govern with respect to such portions. Customer agrees to abide by the terms and conditions of the Third-Party Terms of Service provided by RapidFire AI, if applicable. RapidFire AI disclaims any liability with respect to such portions of the Services. Customer agrees that such third-party providers are third-party beneficiaries of all terms applicable to them. Customer, at its sole expense, will defend, indemnify, and hold harmless RapidFire AI from and against any and all Suits resulting from or arising in connection with any alleged or actual violation of any Third-Party Terms of Service by or on behalf of Customer.
3.5 Feedback. Customer hereby grants to RapidFire AI a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. RapidFire AI will not identify Customer as the source of any such feedback.
4. CONFIDENTIALITY
4.1 Confidential Information. Subject to Section 4.3, all information disclosed by one party (“Disclosing Party”) to the other party (the “Receiving Party”) during the term of and connection with this Agreement, whether oral, written, graphic or electronic (the “Confidential Information”) is the confidential and proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto shall be Confidential Information of RapidFire AI. All data provided by Customer to RapidFire AI to enable provision and performance of the Services shall be Customer’s Confidential Information.
4.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
4.3 Exceptions. The Receiving Party’s obligations under Section 4.2 with respect to Confidential Information of the Disclosing Party will not apply to any information that the Receiving Party can demonstrate through competent evidence: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
5. WARRANTIES AND DISCLAIMERS
5.1 Performance Warranty. RapidFire AI represents and warrants to Customer, that during the term of any paid subscription, the Services will perform in accordance with their Documentation in all material respects. In the event of any breach of the foregoing, RapidFire AI as its sole obligation and as Customer’s sole remedy, will use commercially reasonable efforts to fix and/or repair the non-conforming Services.
5.2 By Customer. Customer represents and warrant to RapidFire AI that (a) Customer has all rights, licenses and authorizations necessary to grant the rights and licenses granted to RapidFire hereunder, (b) Customer has the authority to enter into this agreement personally (if Customer is an natural person), or on behalf of the entity entering into this agreement, and to bind that entity, (c) the Customer Models do not and will not infringe upon any third party’s Intellectual Property Rights, (d) the Customer Models do not contain any viruses, worms or other malicious computer programming codes intended to damage RapidFire AI’s system or data, and (e) Customer will not use the Service to promote or conduct any unlawful activity.
5.3 Disclaimer. EXCEPT AS SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS,” AND RAPIDFIRE AI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY RAPIDFIRE AI. RAPIDFIRE AI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES AND SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER, IN WHICH CASE SUCH LIMITATIONS WILL APPLY TO THE MAXIMUM PERMITTED BY LAW.
6. LIMITATION OF LIABILITY
6.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER RAPIDFIRE AI NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH RAPIDFIRE AI’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF RAPIDFIRE AI HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
6.2 Amount of Damages. THE MAXIMUM LIABILITY OF RAPIDFIRE AI ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, INCLUDING THE PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE GREATER OF (A) FEES PAID (AS EXPRESSLY IN U.S. DOLLARS AT THE TIME OF THE PAYMENT) BY CUSTOMER TO RAPIDFIRE AI DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IF THE AGREEMENT HAS BEEN IN EFFECT ONE YEAR OR MORE; OR (B) $100. IN NO EVENT SHALL RAPIDFIRE AI’S LICENSORS OR SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE RAPIDFIRE AI’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF RAPIDFIRE AI OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
6.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
7. INDEMNIFICATION
7.1. By RapidFire AI. Subject to the terms herein, including Section 5, RapidFire AI will (1) defend, or at its option settle, any claim, action or proceeding brought by a third party against Customer (a “Suit”) to the extent such Suit claims that Customer’s use of the RapidFire AI Property as permitted in this Agreement constitutes Customer’s infringement or misappropriation by Customer of a third party’s Intellectual Property Rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agree to by RapidFire AI in a monetary settlement of such Suit. If any portion of the Services becomes, or in RapidFire AI’s opinion is likely to become, the subject of a claim of infringement, RapidFire AI may, at RapidFire AI’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing Services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to RapidFire AI in respect of the allegedly infringing Services for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Documentation, and Services. Notwithstanding the foregoing, RapidFire AI shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (w) the Customer Models or any other data, information or material provided by or on behalf of Customer; (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, services or data not supplied by RapidFire AI; or (z) any modification of the Services by any person other than RapidFire AI or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This subsection states the sole and exclusive remedy of Customer and the entire liability of RapidFire AI, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
7.2 By Customer. Customer will defend at its expense any suit brought against RapidFire AI, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (i) an Exclusion; or (ii) Customer’s breach or alleged breach of any of Customer’s of this Agreement, including without limitation any of Customer’s representations or warranties herein.
7.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified 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; (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit; and (d) the indemnifying party shall not enter into any settlement that admits the indemnified party’s fault or imposes any material obligation on the indemnified party without the indemnified party’s written consent.
8. TERMINATION
This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement. RapidFire AI may cancel, suspend or block Customer’s use of the RapidFire AI Property without notice if there has been a breach of this Agreement by Customer. Customer’s right to use the RapidFire AI Property will end once Customer’s Account has been terminated, and any data that Customer may have stored on the Services may be unavailable later, unless RapidFire AI is required to retain it by law. Customer may terminate its Account at any time by following the unsubscribe procedures stated in Customer’s Account; provided, that, such termination will not take effect until Customer’s then-current subscriptions have expired. In the event Customer terminates its Account, Customer will not be entitled to any refund of any prepaid fees and will be permitted to continue to use its Account until the expiration of its applicable subscription period(s). RapidFire AI is not responsible or liable for any records or information that is made unavailable to Customer as a result of Customer’s termination of its Account. CUSTOMER AGREES THAT RAPIDFIRE AI WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY TERMINATION OF CUSTOMER’S ACCESS TO THE RAPIDFIRE AI PROPERTY. Customer’s payment obligations and Sections 1.2(g), 2 (with respect to unpaid fees accruing before the effective date of expiration or termination), 3, 4, 5.3, 6, 7, 8 and 9 shall survive the termination of this Agreement.
9. MISCELLANEOUS
9.1 Governing Law and Dispute Resolution.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The laws of the jurisdiction where Customer is located may be different from California law.
Any dispute (including whether the claims asserted are arbitrable) arising out of or under this Agreement (“Dispute”) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the [San Francisco], California office of JAMS (the “Administrator”), except that (1) Customer may assert claims in small claims court in [San Francisco], California if Customer’s claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) Customer or RapidFire AI may seek equitable or other relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be New York, New York USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 6 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by New York law or United States Federal law.
By using the Services in any manner, Customer agrees to the above arbitration provision. In doing so, CUSTOMER GIVES UP CUSTOMER’S RIGHT TO GO TO COURT (except as expressly set forth in Section 9.1.2) to assert or defend any claims between Customer and RapidFire AI. CUSTOMER ALSO HEREBY GIVES UP CUSTOMER’S RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Customer’s rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. Customer is entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but Customer should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the Arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. In the event that any part of this Section 9.1 is found unenforceable, the remainder will be enforced to the extent legally permitted, except that if the provisions waiving Customer’s right to class actions or other class proceedings is found unenforceable, this entire Section 9.1, other than the first sentence, will be deemed of no force or effect and ignored.
9.2 Notices. Where RapidFire AI requires that Customer provide an email address, Customer is responsible for providing RapidFire AI with its most current email address. In the event that the last email address Customer provided to RapidFire AI is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by this Agreement, RapidFire AI’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give RapidFire AI notice at the following address: 195 Page Mill Road, Suite 115 Palo Alto CA 94306. Such notice will be deemed given when received by RapidFire AI by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
9.3 Modifications. RapidFire AI reserves the right, at its discretion, to amend this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. If you do not agree to the amended Terms, you must stop using our Services. RapidFire AI may require Customer to consent to updates to this Agreement before further use of the Services is permitted. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and any use of the Services following any updates or amendments to this Agreement by RapidFire AI shall constitute acceptance of the Agreement.
9.4 Consent to Electronic Communication. The communications between Customer and RapidFire AI use electronic means, whether Customer or RapidFire AI communicates with the other via email. For contractual purposes, Customer (1) consents to receive communications from RapidFire AI in an electronic form; and (2) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that RapidFire AI provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights.
9.5 Publicity. RapidFire AI may list the Customer’s name and logo on RapidFire AI’s website as a user of RapidFire AI and its Services, name Customer as a reference for RapidFire AI, produce and publish a case study regarding Customer’s use of the Services and issue a mutually acceptable press release.
9.6 General. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of RapidFire AI, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the RapidFire AI. Any purported assignment in contravention of the foregoing is null and void. RapidFire AI may freely assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any delay in the performance of any duties or obligations of either party (except the payment of amounts owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Customer’s relationship to RapidFire AI is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of RapidFire AI. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
9.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
9.8 Non-Solicit. During the term of the Agreement and for 12 months thereafter, Customer agrees not to, indirectly or directly, solicit, recruit, employ or otherwise retain any employee or contractor of RapidFire AI without RapidFire AI’s prior written consent. This section shall not prohibit Customer from employing or otherwise retaining any employee or contractor who responds to a general solicitation addressed to the public and who was not specifically solicited or recruited in violation of this section
10. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
“Authorized User” means any individual who is an employee of Customer or such other person or entity as may be authorized by Customer, to access one or more Services pursuant to Customer’s rights under this Agreement.
“Compute Limit” means maximum amount of computational processing, memory and/or resources for which applicable fees have been paid by Customer.
“Customer Model” means any algorithms, AI models and related training data uploaded or transmitted by Customer to the Services.
“Documentation” means the technical materials provided by RapidFire AI to Customer in hard copy or electronic form describing the use and operation of the Services.
“Error” means a reproducible failure of the Services to substantially conform to the Documentation.
“Error Corrections” means bug fixes or workarounds intended to correct Errors in the Services.
“RapidFire AI Property” means the Services, Documentation, Performance Data and all systems, networks, APIs, websites or other materials that are either owned or operated by RapidFire AI, or provided to Customer in connection with this Agreement.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Performance Data” means any log files, metadata and other technical performance data automatically generated by the Services relating to the use, performance, efficacy, reliability and/or accuracy of the Services, and which does not contain or reference any data, information or materials in any form relating to Customer’s Account of Customer Models.
“Services” means any services provided by RapidFire AI to Customer under this Agreement as set forth in an Order Form.
“Update” means an update, upgrade, enhancement or any other improvement to the Services that, in its discretion, RapidFire AI makes generally available to other Customers as part of the standard Services.
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