Sign-Speak
Terms of Service

Last Revised: April 11, 2024

1. ACCEPTANCE OF TERMS
1.1 This Terms of Service Agreement (this “Agreement”) govern your access and use of (a) the software platform described in Section 1 below whether accessed through an Application Programming Interface (“API”), a Software Development Kit (“SDK”), or otherwise, and (b) the functionality, services, content, tools, and features offered on or through the API, SDK, or otherwise (collectively, the “Service”), which are provided by or on behalf of Sign-Speak, Inc (the “Company”, “we”, or “us”). By accepting these terms of service, or by otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service.

1.2 For the purposes of these Terms of Service, “you”, “your”, or “Customer” means you as the user of the Service. If you are entering into these Terms of Service on behalf of a company, business, or other legal entity, or are using the Service on behalf of a company, business, or other legal entity, you represent that you have the authority to bind such entity to these Terms of Service, in which case the terms “you” or “your” shall refer to both you and such entity.

1.3 Should an agreement be entered into between you and the Company labeled as a “Master Services Agreement” which includes a provision which superseeds this Terms of Service (and names this Terms of Service explicitly), this Agreement will be entirely superseded by such Master Services Agreement. Unless such Master Service Agreement explicitly names this Terms of Service, this Terms of Service shall govern. If this agreement is superseded by a Master Service Agreement as described above, any future consent to this Agreement (for example, consent to this Agreement provided by continual use of the Service) shall similarly be superseeded. Any other contemporaneous representations, agreements, and understandings, wether oral or written, with respect to the subject matter of this Agreement shall be superseeded by this Agreement.

1.4 We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will update the “Last Revised” date at the top of the page of these Terms of Service. You can review the most current version of these Terms of Service at any time at develop.sign-speak.com/tos. We will use commercially reasonable efforts to notify you of any material changes thirty (30) days prior to any such material changes taking effect through the Service user interface, a pop-up notice on the Site, email via the email address associated with your Account, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. If any change to these Terms of Service is not acceptable to you, you must cease all access or use of the Service.

1.5 When using our Services, you agree to our End User License Agreement (“EULA”) outlined at develop.sign-speak.com/eula and our Privacy Policy (“Privacy Policy”) outlined at develop.sign-speak.com/privacy. Whenever any of your end users interacts with the Services (for example, through an application you developed), you must obtain their agreement to both the EULA and Privacy Policy (“End User Consent”). These agreements may change from time to time as described in 1.4, when such changes occur, you agree to secure additional consent from your end users. You agree to defend, indemnify, and hold harmless the Company, its affiliates, and its and their respective owners, employees, directors, service providers, licensors, and agents from and and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of any claims due to your failure to adequately obtain End User Consent.

2. DEFINITIONS
2.1 The Service provides a technology platform that may (1) transcribe English speech to text (such transcripted text, “Speech to Text Content”), (2) generate signed content (signed in Sign Language) from English text and conveyed to the end user through an avatar (such generated signed content, “Avatar-Generated Content”), (3) translate Sign Language into English text (such translated text, “ASL to Text Content”), or (4) generate automated English voice from English textual content (such generated voice content, “Text to Voice Content”).

2.2 “Confidential Information” means all nonpublic, or proprietary business, technical or third party information of a party, including but not limited to identities of customers, clients, suppliers; cost and expense information; trade secrets, know-how, methods and processes, pricing and financial data, software and documentation, which are provided, disclosed, or made available to the other party under this Agreement that is either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances of disclosure.

3. API ACCESS; RESTRICTIONS
3.1 Subject to the terms of this Agreement, the Company hereby grants Customer a non-exclusive, non-transferable, limited right to access and use the Services and Outputs (as defined below in this Agreement) solely for the Customer’s internal business purposes (including to provide services to Customer’s end users) during the Term.

3.2 You shall not (a) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code of the Service, (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) modify, adapt, or hack the Service to, or otherwise attempt to, gain unauthorized access to the Service or its related systems or networks, (d) use bots, hacks, mods, or any other unauthorized software designed to modify the Service, (e) circumvent, remove, alter, or thwart any technological measure or content protections of the Service, (f) use the service to create a competitive product, (g) create a competitive product, (h) use any spider, crawler, scraper, or other automatic device, process or software that intercepts, mines, scrapes, extracts, or otherwise accesses the Service to monitor, extract, copy, or collect information or data from or through the Service, or engage in any manual process to do the same, (i) introduce any viruses, trojan horses, worms, bombs, or other materials that are malicious or technologically harmful into our systems, (j) use the Service for illegal, harassing, unethical, or disruptive purposes, or in a way that would harm the Company, (k) remove any proprietary notices or labels displayed on the Service, (l) modify, copy, or create derivative works based on the API or Service, (m) use the API for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than Users); (n) use the API in a manner that exceed reasonable request volume, constitutes excessive or abusive usage, to generate training data (o) use the API in any way that causes either Customer or the Company to be in violation of federal, state, or local laws, rules, regulation, or guidance, or (p) access or use the Service in any way not expressly permitted by these Terms of Service. Any derivative works created from the API or Service shall be wholly owned by the Company. You shall also comply with any codes of conduct, policies, or other notices the Company provides you or publishes in connection with the Service. WITHOUT LIMITING THE FOREGOING, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED, AND SHOULD NOT BE USED FOR: (I) HEALTH DIAGNOSTIC PURPOSES, (II) THE OPERATION OF ANY EQUIPMENT OR APPLIANCE WHOSE FAILURE OR IMPAIRMENT COULD RESULT IN UNFORESEEABLE PHYSICAL DAMAGE OR DEATH TO A PERSON, (III) MEDICAL EMERGENCIES, (IV) DETERMINING ELIGIBILITY FOR ANY FINANCIAL OR LENDING SERVICES, OR (V) FOR ANY INTERACTION OR COMMUNICATIONS WITH POLICE OR OTHER LAW ENFORCEMENT PERSONNEL.

3.4 Prior to the release of any product, or allowing any of the Customer’s end users to use any product which uses the Service, Customer shall design and implement a user interface pursuant to which Customer’s end users can access the Output or the functionalities enabled by the Output, and which provides a method for providing notice and obtaining or securing Customer’s end users’ consent and permissions for the collection and use of certain Customer Data (the “User Interface”). Prior to making the User Interface publicly available to any Customer’s end user or collecting any Customer Data via or in connection with the Services, Customer must obtain the Company’s written approval with respect to the design, accessibility, and user flow of the User Interface as well as notices provided and consents obtained or secured thereby or prior to the collection of any Customer Data and all language and content displayed thereon, which may be granted or withheld at the Company’s sole discretion. Customer will ensure that the User Interface is at all times during the Term presented and maintained in the form approved by the Company. Customer shall, on an ongoing basis, give the Company access to all information reasonably required for the Company to monitor the Customer’s compliance with this Section. The Company may suspend Customer’s access to the API and/or the Services in the event of Customer’s breach of this Section immediately upon written notice to Customer.

3.5 The Services are not intended for, and Customer agrees it will not, and will not allow third parties (including internal users and end users) to use the Services or any Output created using the Services for (a) health diagnostic purposes, (b) the operation of any equipment or appliance whose failure or impairment could result in unforeseeable physical damage or death to a person, (c) medical emergencies, (d) determining eligibility for any financial or lending services or (e) for any interaction or communications with police or other law enforcement personnel.

3.6 The Company will provide to Customer unique electronic keys, tokens or other security features (“Electronic Keys”) to access the API. Customer will not assign or transfer such Electronic Keys to any third party. Certain Electronic Keys may be private (“Private Keys”) and Customer will hold such Private Keys in confidence and may not disclose such Private Keys to any third party (other than its employees and subcontractors engaged by Customer, in each case who require access to the API to perform duties to Customer). Prior to the disclosure of any Electronic Keys to an employee or subcontractor engaged by the Customer, Customer must register such employee or subcontractor on the developer portal located at develop.sign-speak.com. If an employee or subcontractor does not appear on the developer portal, they must not be granted access to any Private Keys. Other Electronic Keys may be public (“Public Keys”) and such Public Keys may be distributed in Customer’s applications. Customer will be liable for all access and usage of the Services via an Electronic Key (whether a Private Key or a Public Key) assigned to Customer. Customer will monitor usage of the Electronic Keys assigned to Customer to ensure there is no unauthorized use of the API or other non-compliance with the terms of this provision herein.

3.7 The Company may, in its sole discretion, provide Customer with SDKs or Demonstration Apps, which will be provided in electronic form and can be downloaded from a dedicated website designated by the Company. Subject to the terms and conditions of this Agreement, the Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable right to use, install, run, perform, and display the SDK for the sole purpose of developing a user interface that interoperates with the Services. Should a contradiction arise bewteen the SDK's or Demonstration Apps' license and this Agreement, this Agreement shall govern.

3.8 The Company may modify, amend, alter, supplement, or replace the Services from time to time, in whole or in part, without any notice to Customer; provided that the Company will use reasonable efforts to provide Customer written notice if the Company believes that any modification, amendment, alteration, supplement, or replacement will cause a material adverse effect on Customer’s access or use of the Services. Customer agrees that its entry into this Agreement is not contingent on the Company developing, delivering or otherwise making available any future functionality or features of the Services, or dependent on any oral or written public comments made by the Company regarding future functionality or features of the Services.

3.9 If Customer exceeds any access limits, then Customer will either (a) reduce its usage to conform to the applicable limit or (b) execute a Master Service Agreement for additional usage. In either case, Customer shall be responsible for paying any fees associated with upgrading their usage tier.

3.10 Customer acknowledge and agree that the output generated and returned by the API, including Avatar-Generated Content and all other voice or textual content (the “Output”) is generated using the Company’s proprietary artificial intelligence (“AI”) tools. In addition to the limitations and restrictions set forth in this Agreement, there are numerous limitations that apply with respect to AI-generated Output due to the fact that it is automatically generated, including that (a) it may contain errors or misleading information, (b) AI systems are based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content, (c) AI systems can struggle with understanding the nuances of language, including slang, idioms, and cultural references, which can result in Output that is out of context or does not make sense, (d) AI systems do not have emotions and cannot understand or convey emotions in the way humans can, which can result in Output that lacks the empathy and emotion that humans are able to convey, (e) AI systems can perpetuate biases that are present in the data used to train them, which can result in Output that is discriminatory or offensive, (f) AI systems can struggle with complex tasks that require reasoning, judgment and decision-making, (g) AI systems require large amounts of data to train and generate content, and the data used to train AI systems may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated Output, and (h) AI-generated Output can lack the personal touch that comes with content created by humans, which can make it seem cold and impersonal. Customer agrees that it is responsible for evaluating the accuracy, completeness, or usefulness of any Output.

3.11 Upon the Company’s request, the Customer must place and include the Company’s branding on the Customer’s application and marketing materials so that the Customer’s end users shall be informed that Services were provided by the Company.

4. DATA
4.1 Customer hereby grants the Company a non-exclusive, royalty-free, fully-paid worldwide license (with the right to sublicense to the Company’s subcontractors performing services for the Company and to third party service providers used by the Company in providing the Services) to access, use, reproduce and create derivative works of all data and content processed through the API, including all data and content provided by Customer’s end users (the “Customer Data”) to (a) provide the Services to Customer and (b) to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Service and other Company offerings. Additionally, both during and after the Term, the Company will be free to use and share Customer Data in connection with the Company’s conduct of its business, including for artificial intelligence training purposes. Furthermore, the Company shall have the right to collect and analyze data and other information relating to Customer’s use and access of the Service (“Usage Data”) and the Company will be free (during and after the Term) to use such Usage Data in connection with the Company’s conduct of its business, provided that any disclosure of Usage Data shall be solely in aggregate or other de-identified form. Customer ensures it obtains all applicable rights, permissions and consents to grant the Company the right to use the Customer Data pursuant to this Section, including the use of any person’s image or likeness as part of the Output. Customer is responsible for obtaining all necessary rights, permissions and consents prior to providing or inputting data into Services.

4.2 Customer shall comply with all applicable data protection, information security and privacy laws, rules, regulations and relevant industry standards (including, but not limited to, the California Consumer Privacy Act, the Children’s Online Privacy Protection Act, the Telephone Consumer Protection Act, the California Invasion of Privacy Act, and analogous state and federal wiretapping laws, and the Illinois Biometric Information Privacy Act) in its collection of all Customer Data to enable the Company to use the Customer Data in accordance with this Agreement. Company shall comply with all applicable data protection, information security and privacy laws, rules, regulations and relevant industry standards in its use of any Customer Data it receives in service of this Agreement.

5. PROPRIETARY RIGHTS
5.1 The Company shall own and retain all right, title, and interest in and to (a) the API, SDK, and all improvements, enhancements, customizations, or modifications thereto, (b) the Usage Data, (c) any software, applications, inventions, or other technology developed in connection with the Services (d) any Output provided by the Service and (e) all intellectual property rights related to any of the foregoing. All rights to the Services not expressly granted under this Agreement are reserved by the Company.

5.2 Customer acknowledges that all suggestions for corrections, changes, additions, or modifications to the Services, and any other feedback provided by Customer (collectively, “Feedback”) are the exclusive property of the Company and Customer hereby assigns all rights in and to any Feedback to the Company.

5.3 As between the parties, subject to the Company’s rights under Section 4.1, Customer owns all right, title, and interest in and to the Customer Data.

6. PAYMENT OF FEES
6.1 Customer shall pay the fees specified in the mutually agreed upon price sheet and other applicable fees that may be due hereunder (the “Fees”). The Company shall bill Customer through an invoice, which may be sent via email. Any charges that Customer disputes must be notified to the Company within sixty (60) days after the invoice, or within such longer period of time as may be required under applicable law. Full payment for invoices issued in any given month must be received by the Company thirty (30) days after the date of the invoice. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Customer shall be responsible for all taxes associated with its use of the Services other than taxes based on the Company’s net income.

7. CONTENT
7.1 You are solely responsible for all data, images, videos information, feedback, suggestions, text, content and other materials that you upload, deliver, provide, or otherwise transmit or store (hereafter “provide”) in connection with or relating to your use of the Service, including any content you provide that include other individuals who are identifiable (“Your Content”). You represent and warrant that you have obtained all applicable rights, permissions, and consents to grant the Company the right to use Your Content pursuant to this Agreement, including the use of any person’s image or likeness as part of the Output. You are responsible for obtaining all necessary rights, permissions, and consents prior to providing or inputting data into Service. By providing Your Content on or through the Service, you hereby grant the Company (and our third party partners and service providers) a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content and related Output (as defined below) in connection with (i) providing the Service to you, (ii) improving and enhancing the Services, and for other development, diagnostic and corrective purposes, or therapeutic purposes in connection with the Service and other Company offerings, including to develop and train our AI Models, (iii) any other purpose outlined in this Agreement. You agree that the foregoing includes a right for us to make Your Content available to, and pass the foregoing rights to, others with whom we have contractual relationships related to the provision of the Service, such as third party providers of AI tools used in connection with the Service, solely for the purpose of providing the Service, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. Additionally, the Company may generate and use technical logs, data and learnings about your use of the Service and Your Content in aggregate, anonymized form for any lawful business purposes.
7.2 You understand that the operation of the Service may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to the Company’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. We employ a number of technical, organizational and physical safeguards designed to protect Your Content. However, no security measures are failsafe and we cannot guarantee the security of Your Content. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. The Company will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

8. CONFIDENTIALITY
8.1 The Customer understands that the Company has disclosed or may disclose Confidential Information. Confidential Information of the Company includes non-public information regarding features, functionality and performance of the Services, pricing terms for the Services and the terms of this Agreement. Confidential Information may include information not explicitly disclosed by Customer, but derived through usage of the Service. The enforcement by the Company of any Confidentiality rights within section 8 shall itself be considered Confidential Information. The Customer agrees: (a) to use at least the same care and precaution in protecting the Company’s Confidential Information as the Customer uses to protect its own proprietary information and trade secrets, but in no event less than a reasonable degree of care and (b) not to use or disclose to any third person any of the Company’s Proprietary Information except for the Customer’s employees, subcontractors, attorneys, advisors, and potential investors who are bound by written agreement to keep such information confidential.

8.2 The Company agrees that the foregoing Section 8.1 shall not apply with respect to any information that the Customer can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Company, or (c) was rightfully disclosed to it without restriction by a third party.

8.7 Notwithstanding this Section 8, the Customer may disclose the Confidential Information of the Company in the event that the Customer receives a subpoena or other government process that purports to require the production of Confidential Information of the Company for use in an action or proceeding, provided that the Customer shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of this Agreement, (b) promptly inform the Company of the receipt of such subpoena or other government process, and (c) not oppose any effort by the Company to quash or limit any such subpoena or other government process. In the event the Company fails to intervene to quash or limit such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced; provided, that such Confidential Information shall not lose its confidential status through such use and the Customer shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use.

8.8 Upon the request of either party, copies and embodiments of such party’s Confidential Information shall be promptly returned to such party by the Customer or destroyed by the Customer, and the Customer agrees to certify such destruction in writing.

9. TERM AND TERMINATION
9.1 Either party may terminate this Agreement upon written notice for convenience.

9.2 Without limiting the Company’s rights under Section 9.2, or other rights in this Agreement, the Company may immediately suspend access to the Services if Customer breaches this Agreement until such breach is cured.

9.3 Upon termination of this Agreement, all rights and obligations of the parties shall cease (except as set forth in Section 9.4). No termination of this Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination, including any Fees accrued or payable to the Company prior to the effective date of termination.

9.4 The provisions of Sections 1, 2, 3.2, 4, 5, 6, 7, 8, 9.3, 9.4, 10, 11, 12, 13 shall survive any termination of this agreement.

10. REPRESENTATIONS AND WARRENTIES; DISCLAIMER
10.1 Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing under the laws of the state of its formation or incorporation and has full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; (b) it is not party to any other agreements, written or oral, with any third party in conflict herewith; and (c) the individual signing on behalf of such party is duly authorized to do so and to bind such party.

10.2 The Company represents and warrants that the Services will operate in conformity with any specifications set forth in writing by the Company in all material respects for the Services provided. In the event of a breach of the warranty in this Section 10.2, Customer shall notify the Company in writing of the alleged issue, providing details of the problems, and upon confirmation of the issue by the Company, the Company will use commercially reasonable efforts to promptly correct any identified problem or provide work-arounds that address the identified issue to enable the Services to perform in accordance with this limited warranty. If the Company is unable to correct any identified problem, the Company shall notify Customer and Customer have the right to terminate this Agreement upon thirty (30) days’ written notice to the Company and the Company will refund Customer any pre-paid amounts for periods that have not yet occurred on the date of termination. The foregoing shall be the Company’s sole obligation and exclusive liability, and Customer’s sole and exclusive remedy, for any breach of the warranty in this Section 10.2.

10.3 EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS SECTION 10, THE SERVICES, AND ALL OUTPUT, DATA, AND INFORMATION PROVIDED BY THE COMPANY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE QUALITY OF ANY SERVICES, OR OUTPUT, DATA, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH USE OF THE SERVICES, WILL MEET CUSTOMER’S EXPECTATIONS, AND NO INFORMATION, ADVICE OR SERVICE OBTAINED THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, MISTAKES OR INACCURACIES OF ANY OUTPUT, DATA, CONTENT, AND MATERIALS MADE AVAILABLE THROUGH THE SERVICES OR FOR CUSTOMER’S USAGE OF ANY SUCH OUTPUT, DATA, CONTENT, AND MATERIALS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY’S APPROVAL OF THE USER INTERFACE AND THE EXERCISE OF ITS RIGHTS PURSUANT TO SECTION 3.4 IS NOT A REPRESENTATION OR WARRANTY REGARDING THE LEGALITY OR SUFFICIENCY OF ANY END USER NOTICE PROVIDED AND CONSENT OBTAINED OR SECURED VIA OR IN CONNECTION WITH THE SERVICES. APPROVAL BY THE COMPANY OF THE USER INTERFACE OR ANY COMPONENT OR FEATURE THEREOF CANNOT AND SHOULD NOT BE INTERPRETED OR CONSTRUED AS ANY STATEMENT OR CERTIFICATION REGARDING THE COMPLIANCE OF THE PROCESS OF PROVIDING NOTICE OR OBTAINING OR SECURING END USER CONSENT TO COLLECT AND PROCESS CERTAIN CUSTOMER DATA VIA OR IN CONNECTION WITH THE SERVICES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY IS NEITHER RESPONSIBLE NOR LIABLE FOR PROVIDING NOTICE OR OBTAINING OR SECURING END USER CONSENT FOR THE COLLECTION OR PROCESSING OF CERTAIN CUSTOMER DATA MADE AVAILABLE VIA THE USER INTERFACE OR THAT THE FOREGOING COMPLIES WITH ANY LAW, RULE OR REGULATION.

11. INDEMNIFICATION AND LIMITATION OF LIABILITY
11.1 To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless the Company, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Company Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to (a) your use of the Service, (b) Your Content, (c) your violation of these Terms of Service, (d) an Excluded Activity, (e) the Customer’s usage of the Services or any Output, (f) the Company’s use of the Customer Data in compliance with the Terms of this Agreement, or (g) Customer’s breach of Section 3.4 (individually, a “Qualified Event”). Without limiting the Company’s rights under this Section 11.1, you agree to defend, indemnify, and hold harmless the Company, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Company Parties”) in connection with any Claim brought against the Company in relation to a Qualified Event. The Company will provide notice to you of any such claim, suit, or proceeding. The Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and you agree to cooperate with any reasonable requests assisting the Company’s defense of such matter. You may not settle or compromise any claim against the Company Parties without the Company’s prior written consent.

11.2 LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU FOR THE USE OF THE SERVICE IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.


12. GOVERNMENT MATTERS.
12.1 Customer may not remove or export from the United States or allow the export or re-export of the API, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the API (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

13 MISCELLANEOUS
13.1 Neither party may assign this Agreement, except with the other party’s prior written consent. Notwithstanding the foregoing, the Company may freely assign this Agreement without Customer’s consent as a whole to any of its affiliates, or to any entity in relation to a merger or sale of all or substantially all of its assets.

13.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may be amended or modified in whole or in part at any time only by a writing executed by both parties.

13.3 Unless otherwise stated in this Agreement, this Agreement constitutes the full and entire understanding and agreement of the parties with regard to the subject matter hereof, and supersedes all prior agreements or understandings, written or oral, between the Parties with respect to the subject matter hereof.

13.4 This Agreement and any dispute arising hereunder shall be governed by the laws of the State of New York, without regard to the conflicts of law provisions thereof. All disputes arising out of or in connection with this Agreement shall be settled by arbitration in New York before a neutral single arbitrator, whose decision will be final and binding and the arbitral proceedings will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. Notwithstanding the foregoing, either party hereto shall be entitled to seek injunctive or equitable relief from a court of competent jurisdiction without the necessity of posting bond or proving actual damages.

13.5 As part of the Company’s sales and marketing efforts, the Company may publicly identify Customer by name as a customer and may describe the services provided to Customer in general and Customer hereby grants the Company a non-exclusive license to use and reproduce Customer’s name, logos, and trademarks as part of the Company’s such sales and marketing efforts. Company shall comply with Customer’s trademark usage guidelines as provided in writing to Company and shall not revise Customer’s trademark or logos except as to size, without Customer’s prior written consent. Testimonial or case studies may be used by the Company with Customer’s cooperation and editorial review.

13.6 Without limiting anything herein, and except for Customer’s payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including, but not limited to, governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, epidemics, pandemics, and power failures.

13.7 For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract.

13.8 Any notices in connection with this Agreement will be in writing and sent and acknowledged by the Company.