These terms relate to Dynamo AI products licensed under a Non-Production License.
PLEASE READ THESE TERMS (“TERMS”) CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY DYNAMOFL, INC. (“DYNAMO AI”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH DYNAMO AI WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“COMPANY”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA DYNAMO AI’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY DYNAMO AI SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Non-Production Period.
1.1. Dynamo AI will make available the Products to Company for evaluation as part of a free or paid trial, implementation, evaluation, or pilot (collectively, the “Non-Production Period”), as further described in the Statement of Work.
1.2. Company acknowledges and agrees that the Non-Production Period and its evaluation of the Products do not require, and Company agrees not to transmit or provide Dynamo AI with access to, any personally identifiable information. If Company inadvertently provides Dynamo AI with any personally identifiable information, Company shall promptly notify Dynamo AI and Dynamo AI shall delete such information. Company understands and agrees that all information Dynamo AI obtains from Company will be subject to and governed by the then-current Privacy Policy, Terms of Service, and Acceptable Use Policy of Dynamo AI, as such policy may be amended from time to time.
1.3. Dynamo AI will have no responsibility or liability for any delays or failures to deliver the Products, in whole or in part, due to: (i) Company’s non-performance of any of its obligations under the Statement of Work; or (ii) Dynamo AI not having sufficient access to the appropriate networks, servers, software, systems, information, data, or databases necessary for Dynamo AI to deliver the applicable Products.
2. Evaluation License
2.1. Dynamo AI grants to Company a non-exclusive, non-transferrable, and non-sublicensable license to use the Products in accordance with the documentation supplied by Dynamo AI solely for Company’s internal evaluation purposes during the Non-Production Period Term. The Products will only be installed, used, and accessed on the Deployment Locations identified in the Statement of Work.
2.2. Company shall not use the results and outputs generated by the Products during the course of the Non-Production Period, including, without limitation, any models that are created, fine-tuned, or otherwise modified by Dynamo AI (collectively, the “Outputs”) for any purpose other than to evaluate the Products during the Non-Production Period Term. Without limiting the foregoing, Company shall not use the Outputs for production purposes, including, without limitation, for use in any commercial products.
2.3. If Company provides any data or its own models to Dynamo AI in connection with the Non-Production Period (“Company Materials”), Company grants Dynamo AI a license to use such Company Materials in connection with the Non-Production Period.
2.4. Company shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Products (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Products; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products; (iv) use the Products for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Products or any portion thereof; (vi) use the Products to build an application or product that is competitive with any Dynamo AI product or service; (vii) interfere or attempt to interfere with the proper working of the Products; or (viii) bypass any measures Dynamo AI may use to prevent or restrict access to the Products.
3. Third-Party IP and Models
3.1. To the extent any third party software, information, data, or other intellectual property is used or incorporated in the Products or is otherwise provided or accessible as part of the Non-Production Period (collectively “Third Party IP”), all such Third Party IP is provided or made available to Company, as applicable, solely pursuant to the terms of use, policies, licenses, agreements, and arrangements applicable to such Third Party IP as designated by the owner thereof (collectively “Third Party Terms”). Company agrees to be bound by and subject to and is solely responsible for complying with all such Third Party Terms with respect to its access or use of Third Party IP. To the extent that Company suggests or requires the use of any Third Party IP (including, without limitation, models or data sets) in connection with the Non-Production Period, Company represents and warrants that the Third Party Terms permit the use of such Third Party IP by both Dynamo AI and Company in connection with the Products and as otherwise required in accordance with this Agreement.
3.2. Without limiting the foregoing, Company acknowledges and agrees that the Products may incorporate artificial intelligence or machine learning algorithms, programs or other models, including large language models, developed or operated by a third party (each, a “Third Party Model”). Company acknowledges that Third Party Models are not developed by Dynamo AI. While Dynamo AI uses commercially reasonable efforts to review and conduct due diligence with respect to Third Party Models, Dynamo AI does not control or influence the training or hosting of Third Party Models, and is unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party Models. Company agrees that Dynamo AI will not be liable for any loss or damages arising from or related to Third Party Models. Notwithstanding anything to the contrary, the warranties and indemnities provided by Dynamo AI in this Agreement do not apply with respect to Third Party Models.
4. Termination
4.1. This Agreement commences on the Effective Date and shall continue until the expiration of the Non-Production Period Term, unless terminated earlier pursuant to Section 2(b).
4.2. This Agreement may be terminated by either party for any reason or no reason upon 15 days’ written notice to the other party, or upon 10 days’ written notice of any breach by the other party of the provisions of this Agreement if the breaching party has not cured such breach within such ten day period.
4.3. Upon termination, the license granted hereunder will terminate, Company shall immediately destroy any copies of the Products, and each party will return all Proprietary Information to the other party, but the terms of this Agreement will otherwise remain in effect. Sections 2.b, 2.d, 4.c, and 5-12 (inclusive) will survive the termination or expiration of this Agreement.
5. Fees.
Company shall pay Dynamo AI the Non-Production Period Fees and, if applicable, the Extension Fees set forth on the Statement of Work within seven (7) days of Company receiving an appropriately calculated invoice for the same. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Company shall be responsible for all taxes associated with the Non-Production Period (excluding taxes based on Dynamo AI’s net income). All fees paid are non-refundable and are not subject to set-off.
6. Ownership
Dynamo AI shall at all times retain all title to and ownership of the Products, the Outputs and all copies thereof. Company shall retain all rights in the Company Materials. Except as expressly set forth herein, no rights or licenses are granted by either party to the other.
7. Confidentiality
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
8. Warranty; Disclaimer
8.1. COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL AI MODELS CONTAIN INHERENT RISKS, ALL OF WHICH ARE EXPRESSLY ASSUME BY COMPANY HEREUNDER.
8.2. The parties acknowledge that the Products are experimental in nature and that the Products and Proprietary Information are provided “AS IS” and may not be functional on any machine or in any environment. EXCEPT AS SET FORTH HEREIN, DYNAMO AI DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3. Company acknowledges that the Products contains a disabling functionality, which Dynamo AI reserves the right to enable upon the expiration or termination of the Non-Production Period Term.
9. Limitation of Liability
NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR (EXCEPT FOR RETURN OF AMOUNTS, IF ANY, PAID TO DYNAMO AI HEREUNDER) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS.
10. Feedback
Company may (but is not obligated to) provide suggestions, comments or other feedback to Dynamo AI with respect to the Products (“Feedback”). Notwithstanding anything else, Company shall, and hereby does, grant to Dynamo AI a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
11. Non-Solicit
During the Non-Production Period Term and for 1 year after any termination of this Agreement, Company will not, without the prior written consent of Dynamo AI, either directly or indirectly, on Company’s own behalf or in the service or on behalf of others, encourage, solicit or attempt to solicit any person employed by Dynamo AI or any contractor of Dynamo AI to leave Dynamo AI for any reason.
12. Miscellaneous
This Agreement shall become effective only upon its execution by both Dynamo AI and Company and it shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Company, and any such attempted assignment or transfer shall be void and without effect. For any breach or threatened breach of this Agreement, Dynamo AI shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Any modifications of this Agreement must be in writing and signed by both parties. Dynamo AI is permitted to disclose to third parties that Company is one of its customers at its sole discretion (including, without limitation, by using Company’s name, mark, and logo in its publicity and marketing materials).