By signing the Order Form(s) that reference these online Terms & Conditions (these "Terms") (collectively, the Order Form(s) and these Terms are the "Agreement"), the entity identified on the Order Form ("Customer") and For Good AI Inc. (dba Zencoder Inc.) ("Company") each acknowledge that they have read, understood, and agreed to be bound by the terms and conditions set forth herein. Company and Customer may be referred to individually as a "Party" and collectively as the "Parties". For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these Terms through their duly authorized representatives.
1. Pilot
1.1 Summary.
These Terms govern Customer's access to, and use of the subscription Services provided by Company during the Pilot Period. Additionally, any Professional Services provided by Company are subject to these Terms.
1.2 Service-Related Definitions.
- "Acceptable Use Policy" means the Acceptable Use Policy incorporated into and forming part of this Agreement and as outlined at https://zencoder.ai/legal/acceptable-use-policy.
- "Authorized Users" include all employees, contractors, agents, or other individuals authorized by Customer to access and use the Services under its account.
- "Beta Services" includes software, services, or features of the Services that are in alpha, beta, evaluation, trial, or pre-release form.
- "Company Materials" means any materials that Company provides to Customer as part of, or while providing, the Services or Professional Services. For purpose of clarity and avoidance of doubt, Output is still Customer Content, and not Company Materials, even if generated from the Services.
- "Customer Content" means content, information, or data submitted, uploaded, integrated, or otherwise provided by or on behalf of Customer to the Services ("Input"), as well as any content generated by the Services based on or derived from such Input ("Output"). Customer Content explicitly excludes Feedback, Usage Data, and Company Technology (each defined below).
- "Order Form" means an ordering document executed by the Parties that specifies the Services and/or Professional Services purchased by Customer. Each Order Form is governed by these Terms.
- "Pilot" means temporary access to Company's Services, for evaluation purposes during the Pilot Period for Parties to assess its suitability for Customer's business needs.
- "Pilot Period" shall be as specified in the applicable Order Form. Unless otherwise indicated in the Order Form or separately agreed in a signed writing between the Parties, the Pilot Period shall not exceed six (6) months.
- "Professional Services", if purchased through an Order Form, may include configuration, implementation, customization, consulting, or training as outlined in the Order Form or separate Statement of Work.
- "Published Documentation" means the documentation describing the Services, as may be updated from time to time, available to Customer at the Help Portal found on Company's website or in the Services.
- "Services" means, collectively, hosted or downloadable software, applications, APIs, generative AI offerings, service manuals, documentation, and other services provided by Company, including any updates thereto. Services does not include Professional Services. Services does not include Third-Party Products (defined below).
- "Statement of Work" or "SOW" means a document that details the specific terms for Professional Services purchased by Customer through an associated Order Form. Each SOW is governed by these Terms.
1.3 Access to the Services.
Subject to Customer's adherence to these Terms, Company grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Services (via Customer Account), solely as authorized herein, for the duration of the Pilot Period. Customer agrees that its purchase of the Services or applicable Professional Services (if any) is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company with respect to future functionality or features. Customer's access to and use of the Services may be subject to daily or periodic usage limits as described in the applicable Order Form or Billing Plan within the Services. Customer acknowledges and understands that exceeding these limits may result in throttling (reduced performance), temporary suspension, or additional charges, as detailed therein.
1.4 Beta Services.
Company may offer Beta Services as part of the Services; in which case the following terms shall apply. Customer acknowledges and agrees that Beta Services, if any, are provided to Customer on a temporary basis, are not generally available, and are provided "AS-IS" and "as-available" without any warranties of any kind, express or implied. Company has the sole discretion in deciding whether to continue offering Beta Services, if any, and may change or terminate any Beta Services at any time for any reason. Company is not responsible for Customer's use of or reliance on Beta Services and any information that Customer provides or makes available during the trial or beta service may be permanently deleted.
1.5 Future Development.
As Part of the Pilot, Customer may have access to Company's roadmap and future development. Company makes no representation, warranty, or guarantee related to any future development. For purposes of clarity, Company has the sole discretion in Company's development, release, and timing of all product and features, and any communicated product roadmap is subject to change at any time, without notice, and for any or no reason.
2. Term
2.1 Subscription Term.
"Subscription Term" means the period Customer is authorized to use or access the Services for the duration of the Pilot Period, pursuant to these Terms, unless earlier terminated as set forth in Section 3.
2.2 Agreement Term.
The "Term" of this Agreement will commence on the Effective Date and will continue until either (a) the Agreement is terminated in accordance with Section 3.1 below, or (b) the Subscription Term has expired and has not been later extended or amended between Parties in writing.
3. Termination
3.1 Termination By Either Party.
A Party may terminate this Agreement, an Order Form, or a Statement of Work for cause: (i) if the other Party is in material breach under this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice (Section 12.3) of such material breach from the non-breaching Party; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such proceeding is not dismissed or resolved in the Party's favor within sixty (60) days.
3.2 Effect of Termination.
Except in instances of an uncured material breach by Company (Section 3.1), in which case Customer shall be entitled to a pro-rata refund of any pre-paid but unused Fees due, all Services Fees are not absolved, and Company does not provide any refunds for Customer's not-for-cause termination of this Agreement. The following sections of this Agreement will survive termination or expiration of this Agreement for any reason: Sections 3.2, 4-6, 7.3, 8.2-8.3, and 9-12. All other rights and obligations of the Parties under this Agreement will expire and terminate upon the earlier of the termination or expiration of this Agreement.
3.2 Data Deletion at Termination.
Company's Services primarily process Customer Content on a transient basis, such that raw Customer Content is generally not retained beyond the immediate processing session. However, Company may (i) create and retain machine-generated data (such as vector embeddings) that does not include raw Customer Content; and (ii) maintain brief logs or debugging data containing limited excerpts of Customer Content to troubleshoot and improve the Services. Except as otherwise required by applicable law, Company will delete (or render unrecoverable) any Customer Content in its possession or control within thirty (30) days following termination of this Agreement, consistent with Company's then-current data deletion practices.
4. Fees and Payment
4.1 Fees.
Customer shall pay all fees specified in the applicable Order Form(s) (collectively, the "Fees"). Except as otherwise specified therein, all Fees are quoted and payable in United States dollars, payment obligations are non-cancelable, and Fees paid are non-refundable. Fees for the Services are based on Services purchased and not actual usage.
4.2 Payment Terms.
Unless otherwise indicated in the applicable Order Form(s), Customer will pay to Company (by wire transfer or other method mutually acceptable to the Parties) all Fees within thirty (30) days of the applicable invoice. Late payment of Fees may be subject to interest on the past due amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law.
4.3 Taxes.
Unless otherwise stated, Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Company's net income or property.
4.4 Suspension of Service.
If Customer is more than thirty (30) days overdue on any payment (except for amounts under a reasonable, good‐faith dispute) and fails to cure such overdue amounts within five (5) business days after receiving written notice (which notice may be provided by Company to Customer via email), then, in addition to any other rights or remedies, Company reserves the right (but is not obligated) to suspend Customer's access to the Services until all overdue amounts are paid in full. For the avoidance of doubt, Customer will remain responsible for all subscription-related Fees regarding Services during any period of suspension.
5. Mutual Proprietary Rights
5.1 Customer Content.
As between Company and Customer and to the extent permitted by applicable law, Customer retains sole ownership of and responsibility for all rights, title, and interest in and to all of Customer Content, excluding any Company Technology incorporated therein. By creating a Customer Account and accessing the Services, Customer grants Company a non-exclusive, transferable, sublicensable, royalty-free license to use Customer Content solely to: (a) provide the Services to Customer during the applicable Pilot Period; (b) make performance enhancements to the Services, including but not limited to benchmarking Company's systems and models to select the best performing options; and (c) with Customer's further consent, to fine-tune or train AI models to function more effectively. Customer acknowledges that, except for any portions that include Customer's proprietary Input, the Output provided by Company may be the same as or similar to the Output provided to other customers. Consequently, Customer's rights, title, and interest in that Output are non-exclusive and are limited solely to the permitted uses allowed under this Agreement. For clarity, nothing in this Agreement authorizes Company to share Customer's proprietary Input to other customers. Customer remains solely responsible for all Input and represents and warrants that it has the requisite rights and licenses to provide such Input for use with the Services. Customer further acknowledges that, due to the unique nature of the Services, the Output may occasionally contain errors and/or be subject to third-party rights, including open-source licenses. Notwithstanding any other provision herein, Company does not make any representation or warranty as to fitness, accuracy or noninfringement of the Output, or as to the rights, title, or interest in or to said Output, and Customer acknowledges it is the sole responsibility and obligation of Customer to ensure that an appropriately qualified human has independently confirmed the fitness, accuracy, reliability, legality and appropriateness of the Output before Customer's use or disclosure of it. For the avoidance of doubt, nothing in these Terms grants Company ownership rights in Customer Content.
5.2 Feedback.
If Customer chooses to provide optional suggestions, ideas, recommendations, bug reports, corrections, Output ratings, or other feedback regarding the Services ("Feedback"), Company is free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of such Feedback, without payment of compensation or any other obligation of any kind to Customer. Company is also entitled not to use Customer Feedback for any or no reason.
5.3 Usage Data.
Company may collect, generate, and derive performance, analytical, or usage data relating to Customer's access to or use of the Services ("Usage Data"). Usage Data will not include any of Customer Content. Company will only use Usage Data to provide the Services to Customer (including by monitoring the performance and stability of the Services working to prevent or address technical issues with the Services, and improving the Services), to improve our products and services generally, and to create and distribute reports and other materials regarding use of the Services that cannot be associated with Customer or any other organization or individual. Usage Data will be deemed Company Technology (defined below). For purposes of clarity, nothing in this Section 5.3 gives Company the right to identify Customer to third parties as a source of or contributor to any Usage Data.
5.4 Intellectual Property Rights.
Customer acknowledges that the Services and Company Technology (defined below), to which Customer will be given access under this Agreement, are covered by or subject to IP Rights (defined below) owned by Company, and Company does not convey to Customer any rights of ownership in or related to the Services, Company Technology, or the IP Rights owned by Company and its suppliers. Customer further acknowledges that Company's business model, including the pricing of Services, is based on: (a) Company retaining sole and exclusive ownership of all IP Rights in the Services and Company Technology; (b) Company providing to Customer a limited license to use the Services and Company Technology in accordance with the limitations set forth in these Terms; and (c) Customer granting Company a license to Customer Content as outlined in these Terms.
"IP Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, registrations, derivatives thereof, and forms of protection of a similar nature anywhere in the world. "Company Technology" means Company's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information).
6. Confidentiality
6.1 Definition of Confidential Information.
As used herein, "Confidential Information" means all non-public, confidential, or proprietary information of a Party (the "Disclosing Party") disclosed to the other Party (the "Receiving Party"), whether orally, visually, electronically, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes, without limitation: (a) the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form(s) and applicable ordering documents); (b) Customer Content; (c) a Party's proprietary technology or computer software in all forms of expression, including the Services, whether or not the same has been patented, is subject to a pending patent or registration application, or is eligible for patent or copyright protection ("Proprietary Technology") and Company Technology; (d) Company Materials, Company's security information, and reports; and (e) each Party's business and marketing plans, technology and technical information, product designs, strategies, and business processes. However, Confidential Information does not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was already known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality Obligations.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either Party may disclose Confidential Information to its personnel, auditors, or financial advisors who are subject to confidentiality obligations comparable in scope to those herein, which are in no event less than a reasonable standard of care. Notwithstanding anything contrary in the Agreement, Company may disclose the existence or terms of this Agreement to third parties who are under confidentiality obligations to Company no less protective of Customer than the confidentiality terms set forth herein when in relation to due diligence efforts related to bank lines, equity funding, IPO, or changes in control with a merger or acquisition; provided that, Company shall be liable for a breach of this Section 6.2 by any such third parties.
6.3 Standard of Care.
The Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
6.4 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.
7. Mutual Responsibilities
7.1 Company Responsibilities.
Company agrees to: (a) use commercially reasonable efforts to maintain the security and integrity of the Services and Customer Content; and (b) not use or modify Customer Content except as expressly permitted under this Agreement.
7.2 Customer Responsibilities.
7.2.1 Acceptable Use. Customer agrees to access and use the Services solely for its internal business purposes, in compliance with this Agreement, including but not limited to the actions outlined in Section 7.3 (Customer Use Restrictions). Customer shall ensure that all Authorized Users comply with these Terms and shall be responsible for any acts or omissions of its Authorized Users.
7.2.2 Account Creation & Maintenance. To access or use the Services, Customer will create an account with login credentials ("Customer Account") and designate Authorized Users to access the Services on its behalf. By creating a Customer Account, Customer: (a) represents and warrants that the individual creating the account is an authorized representative of its entity or organization; (b) assumes sole responsibility for the activity and compliance of all Authorized Users accessing the Services through the Customer Account; (c) agrees to maintain accurate and up-to-date account information at all times; and (d) agrees to notify Company immediately upon becoming aware of any unauthorized access to or misuse of the Customer Account or any breach of security. Customer shall not allow any unauthorized person or entity to access the Services through the Customer Account and agrees to implement and maintain appropriate safeguards to protect account credentials.
7.2.3 Customer Content. Customer agrees that it is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
7.2.4 Customer Processing. Customer agrees to provide any notices, obtain requisite consents, licenses, or rights, or otherwise establish the legal basis necessary for Company to access, process, and otherwise handle Customer Content as contemplated by this Agreement.
7.2.5 Geography. Customer shall not use the Services, nor allow its Authorized Users to use the Services, in any jurisdiction where such use is prohibited by applicable laws or regulations. If the Services or any portion thereof are determined to be illegal under the laws of the country in which Customer or its Authorized Users are located, Customer agrees to immediately cease use of the Services in that jurisdiction.
7.3 Customer Use Restrictions.
Customer shall not, and shall ensure that its Authorized Users do not, nor shall Customer aid or permit any third party, entity, or robot to, attempt to or actually: (a) include personal data in Customer Content, unless explicitly permitted under this Agreement; (b) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, or otherwise modify any aspect of the Services or Company Technology; (c) use another user interface than what is organically provided by Company, or use robotic automation for the user interface; (d) call Company APIs without prior explicit written permission from Company at support@zencoder.ai; (e) decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services or Company Technology; (f) insert malicious or harmful material into the Services with the intent to manipulate, damage, extract prompts, or otherwise use it in a way that deviates from legitimate software development activities; (g) insert poisonous data, or run any activity or action that might harm, exploit, or undermine the Services or the content of any third party; (h) interfere with, disrupt, or gain unauthorized access to the Services, including data or accounts therein; (i) upload to the Services or use the Services to send or store viruses, worms, time bombs, backdoors, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (j) transfer to the Services or otherwise use any code, exploit, or undisclosed feature designed to delete, disable, deactivate, interfere with, or otherwise harm the Services or provide unauthorized access thereto; (k) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (l) use the Services to send or create infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third-party privacy or personal rights; (m) use the Services for generating code that is designed for illegal activities, including but not limited to unsolicited emails and cybersecurity violations; (n) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Services available to any third party without prior written consent from Company; (o) use distillation techniques to extract AI responses/preferences of Company Technology to train, fine-tune, or build a competitive product or service, or copy any ideas, features, functions, or graphics of the Services, or extract information from the Services in furtherance of competing with Company; (p) access the Services to benchmark or compare its features, functionality, or performance without prior written approval from Company at support@zencoder.ai; (q) provide Company Feedback or Customer Content that is unlawful, defamatory, harassing, discriminatory, or infringing upon third-party intellectual property rights; or (r) use the Services in violation of applicable laws, including laws governing export controls, data privacy, and intellectual property; (s) enter into an agreement with a provider of a Third-Party Product that breaches or purports to obligate Customer to breach this Agreement; or (t) breach any contractual obligation with providers of Third-Party Products.
7.4 Export Control. The Services are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets and Control (OFAC) of the United States Department of Treasury. Customer shall not, and shall ensure that its Authorized Users do not, access or use the Services in any jurisdiction where the provision, access, or use of the Services, software, or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction"). Customer shall also not provide access to the Services to any government, entity, or individual located in a Prohibited Jurisdiction. Customer represents and warrants that: (a) Customer and its Authorized Users are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports or transacting with U.S. persons; (b) Customer and its Authorized Users are not nationals of, or entities registered in, any Prohibited Jurisdiction; (c) Customer will not permit any individual, entity, or Authorized User to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions; and (d) Customer will comply with all applicable laws and regulations regarding the transmission of technical data exported from the United States and the jurisdictions in which Customer or its Authorized Users operate.
8. Warranties and Disclaimers
8.1 Warranties.
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Company warrants that: (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Services will perform materially in accordance with Company's then-current Published Documentation under normal use and circumstances; and (iii) it will perform all Professional Services in a professional and workmanlike manner. Additionally, by using any portion of the Services, Customer represents and warrants to Company as follows: (a) Customer is a validly existing legal entity and has all necessary power and authority to enter into and perform its obligations under these Terms; (b) Customer shall be responsible for ensuring that its Authorized Users comply with these Terms and all applicable laws; (c) Customer Feedback (if any) and Customer Content are not libelous, defamatory, obscene, indecent, harassing, hateful, or violent; (i) do not violate these Terms, infringe the rights of a third party, or contravene any applicable law(s); and (ii) do not include viruses, malware, or other harmful code; (d) Customer has obtained all necessary consents, rights, and authority to use and provide Customer Content to the Services, and its use does not violate applicable laws, regulations, or the rights of any third party; and (e) Customer warrants that all Authorized Users are at least 18 years of age or the age of majority in their jurisdiction of residence.
8.2 Remedies.
Customer's exclusive remedy and Company's entire liability for a breach of the warranties set forth in Section 8.1 above shall be as follows: (i) for a breach of the warranties set forth in Section 8.1(i) and 8.1(ii), Company shall correct any material reproducible impairments to the features and functionality in the Services so that it materially conforms to this warranty, and if Company is unable to provide such Services as warranted within thirty (30) days following receipt of written notice of breach from Customer, Customer shall be entitled to terminate the applicable Order Form(s) and receive a pro-rata refund of any prepaid and unused Fees applicable to the remaining portion of the Subscription Term following the effective date of termination; (ii) for a breach of the warranty set forth in Section 8.1(iii), Company shall re-perform the applicable Professional Services. If Company determines that it is unable to perform such Professional Services as warranted within thirty (30) days following receipt of written notice of breach from Customer, Customer shall be entitled to terminate the applicable SOW and recover the Fees paid for the nonconforming Professional Services, if Customer discontinues all use of any provided Professional Services.
8.3 Disclaimers.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES, INCLUDING ALL MATERIALS, CONTENT, AND OUTPUT ARE PROVIDED "AS IS" AND "AS AVAILABLE." COMPANY, ITS AFFILIATES, SUPPLIERS, AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTY ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DOES NOT WARRANT THAT THE SERVICES, INCLUDING OUTPUT OR ANY MATERIALS OR CONTENT OFFERED ON OR THROUGH THE SERVICES, ARE ACCURATE, COMPLETE, ERROR-FREE, WILL BE FREE OF CONTENT THAT INFRINGES THIRD PARTY RIGHTS, OR WITHOUT VIRUSES OR OTHER HARMFUL COMPONENTS, NOR DOES COMPANY WARRANT THAT THE FOREGOING ISSUES (IF ANY) WILL BE CORRECTED. BY ACCESSING AND USING THE SERVICES, CUSTOMER AGREES THAT CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USING OR DISCLOSING OUTPUT AND THAT IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO PERFORM THE HUMAN REVIEW OF OUTPUT DESCRIBED IN SECTION 5.1. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND LIABILITY RELATED TO THIRD-PARTY PRODUCTS INCLUDING ANY CONTENT RECEIVED FROM THIRD-PARTY PRODUCTS.
9. Third-Party Products
9.1 Integration with Third-Party Products.
Customer may choose to enable integrations or data transfers between the Services and third-party products, applications, or services, including third-party AI providers, that are not subcontractors or subprocessors of Company (collectively, "Third-Party Products"). Such Third-Party Products include any external service accessed by Customer through API keys, tokens, or other access credentials issued directly to Customer by the third-party provider ("Customer Third-Party Credentials"). For clarity, a service constitutes a Third-Party Product in this context even if Company maintains an independent relationship with that same provider.
9.2 Disclaimer Regarding Third-Party Products.
Company expressly disclaims all responsibility and liability for Third-Party Products. Company provides no representations or warranties regarding any Third-Party Products, including but not limited to their uptime, availability, functionality, output quality, accuracy, non-infringement, privacy practices, or adherence to Customer's expectations or requirements. Company has no obligation to review, vet, filter, modify, or monitor any content or data received from or transmitted to Third-Party Products. All content or data provided to or accessed through the Services by a Third-Party Product shall be deemed Customer Input, for which Customer bears full responsibility. For clarity, Company has no responsibility for or involvement with billing arrangements between Customer and providers of Third-Party Products, and Customer is solely responsible for the security, confidentiality, and proper management of all Customer Third-Party Credentials used to access Third-Party Products through the Services, including implementation of appropriate credential rotation and access revocation procedures.
10. Indemnification
10.1 Indemnification by Company.
To the fullest extent permitted by applicable law, Company shall indemnify, defend, and hold harmless Customer and its subsidiaries, affiliates, successors, assignees, and their respective shareholders, directors, employees, consultants, and agents (collectively, "Customer Indemnitees") from and against any liabilities, costs, damages, fees, or claims made or brought by an unaffiliated third party ("Claims") arising out of or relating to: (a) Company's gross negligence or willful misconduct in connection with providing the Services; (b) Company's material breach of this Agreement; or (c) Claim alleging that the Services, when used by Customer in compliance with this Agreement, directly infringe or misappropriate a third party's U.S. intellectual property rights (patents, copyrights, trademarks, or trade secrets). Notwithstanding the foregoing, Company shall have no liability or obligation under Section 10.1(c) to the extent the alleged infringement arises from: (i) Customer's unauthorized modification of the Services; (ii) combination of the Services with any hardware, software, or other materials not provided or authorized by Company in writing, including, without limitation, Third-Party Products; (iii) Customer's breach of this Agreement or use of the Services other than as permitted hereunder; (iv) Output. In no event will Company's indemnification obligations extend to indirect, incidental, or consequential damages, except as required by applicable law.
10.2 Indemnification by Customer.
To the fullest extent permitted by applicable law, Customer shall indemnify, defend, and hold harmless Company and its subsidiaries, affiliates, successors, assignees, and their respective shareholders, directors, employees, consultants, and agents (collectively, "Company Indemnitees") from and against any third‐party Claims arising out of or relating to: (a) Customer's use of the Services in violation of this Agreement; (b) Customer's Input or use of Output; (c) Customer's breach of any representation, warranty, or obligation under this Agreement; or (d) Customer's failure to comply with applicable laws (including export control laws). In no event will Customer's indemnification obligations extend to indirect, incidental, or consequential damages, except as required by applicable law.
10.3 Indemnification Procedures.
The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim for which indemnification is sought. The indemnifying Party shall have the right to control the defense and settlement of such Claim, provided that the indemnified Party may participate in the defense at its own expense. The indemnifying Party shall not settle any Claim without the indemnified Party's prior written consent, which shall not be unreasonably withheld or delayed.
11. Limitation of Liability
11.1 Exclusion of Consequential and Related Damages.
To the maximum extent permitted by applicable law, under no circumstances and under no legal theory (whether in contract, tort, negligence, or otherwise) will either Party, its affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other Party or any third party for any indirect, punitive, special, incidental, consequential, or exemplary damages (including damages for loss of profits, goodwill, data, or other intangible losses), arising out of or relating to this Agreement or the inability to use the Services, even if such damages were foreseeable or a Party has been advised of the possibility of such damages.
11.2 General Cap on Direct Liability.
Except as provided in Section 11.3 and Section 11.4 below, and to the maximum extent permitted by applicable law, each Party's aggregate liability for all claims (whether in contract, tort, or otherwise) arising out of or in connection with this Agreement, including any Order Form, will not exceed the total fees paid or payable by Customer under the applicable Order Form(s) in the twelve (12) months preceding the event giving rise to such liability.
11.3 Indemnification Cap
Each Party's total liability for indemnification obligations set forth in Section 10 shall be capped at one hundred thousand dollars ($100,000.00).
11.4 Exceptions and Equitable Relief.
The limitations set forth in Sections 11.2 and 11.3 do not apply to liability arising from (a) a Party's gross negligence, willful misconduct, or fraud; or (b) any liability that cannot be excluded or limited under applicable law. Additionally, nothing in this Section 11 will limit either Party's right to seek equitable or injunctive relief.
12. General Provisions
12.1 Relationship of the Parties.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.2 Assignment.
Neither Party may assign its rights or obligations under this Agreement without the other Party's prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets, provided the assignee is not a direct competitor of the other Party. Any unauthorized assignment is void. This Agreement binds and benefits the Parties and their respective successors and permitted assigns.
12.3 Notices.
All notices or other communications (collectively, "Notices") required or permitted under this Agreement must be in writing and shall be deemed given: (a) upon delivery by a recognized courier, as evidence by a written confirmation of receipt; (b) upon receipt when sent by certified or registered mail, postage prepaid, with return receipt requested; or (c) upon successful transmission by email (without receiving an error or bounce‐back message), provided that a copy is also sent by one of the methods in (a) or (b) above within one (1) business day, unless otherwise mutually agreed in writing by the Parties. Notices to Company shall be directed to the attention of the Legal Department at the physical address listed below and copied by email to legal@forgood.ai. Notices to Customer shall be directed to the attention of the signatory below (or such other address or email specified in writing by Customer). Either Party may update its notice details by providing Notice in accordance with this Section.
12.4 Force Majeure.
Neither Party will be liable for delays or failures caused by circumstances beyond its reasonable control, including acts of God, war, natural disasters, or government restrictions, provided the impacted Party promptly notifies the other and takes commercially reasonable steps to mitigate the impact. If such circumstances continue for more than 20 days, either Party may terminate affected Services upon written notice. This clause does not excuse a Party's failure to implement disaster recovery measures or Customer's obligation to pay for the Services or Professional Services provided.
12.5 Severability.
If any provision of these Terms is found to be invalid or unenforceable, it shall be modified to the minimum extent necessary to fulfill the original intent of the Parties. The remaining provisions will remain in full force and effect.
12.6 Waiver and Cumulative Remedies.
A Party's failure or delay in exercising any right under this Agreement does not waive that right. Except as expressly stated, the remedies provided in this Agreement are cumulative and in addition to any other remedies available at law or equity.
12.7 Governing Law and Arbitration.
This Agreement, and any disputes arising out of or relating to it, shall be governed by the laws of the State of California, excluding its conflict of laws rules, the United Nations Convention on the International Sale of Goods, and the Uniform Computer Information Transactions Act. Any dispute, controversy, or claim arising under this Agreement shall be resolved by final and binding arbitration administered by the Judicial Arbiter Group (or, if unavailable, a similar organization providing former judges as arbitrators), in accordance with the Rules of Arbitration of the International Chamber of Commerce for commercial disputes. The arbitration shall be conducted by a single arbitrator fluent in English and experienced in cloud computing, SaaS, or AI, with the seat of arbitration in San Jose, California, U.S.A. The arbitrator's decision shall be final, binding, and non-appealable to the extent permitted by law and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may seek provisional or conservatory measures (including injunctive relief, specific performance, or other equitable remedies) from any court or authority, whether before or during arbitration, to protect its rights or enforce specific terms.
12.8 Injunctive Relief.
The Parties acknowledge and agree that any breach or threatened breach of the Agreement may cause harm for which money damages may not provide an adequate remedy. Accordingly, the Parties agree that in the event of a breach or threatened breach of the Agreement, in addition to any other available remedies, each Party may seek temporary and permanent injunctive relief without the need to post any bond or other security that otherwise may be required under applicable law.
12.9 Prevailing Party Attorneys' Fees.
The prevailing Party in any dispute, whether resolved through arbitration or judicial proceedings to enforce arbitration awards or obtain provisional remedies, shall be entitled to recover its reasonable attorneys' fees, costs, and expenses, including expert witness fees and costs of appeal.
12.10 Entire Agreement.
This Agreement, including all Order Forms and Statements of Work, constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. For purposes of clarity, any non-disclosure or confidentiality agreement between Parties (if any) is terminated and completely superseded by this Agreement and all information that had been considered "Confidential Information" under such agreement will instead be treated as "Confidential Information" of the relevant Party under this Agreement. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by Parties. To the extent of any conflict or inconsistency between the provisions of these Terms and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail as to the conflict. No terms or conditions set forth on any Customer purchase order or preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.