These terms relate to Dynamo AI products licensed under a Production License.
PLEASE READ THESE TERMS (“TERMS”) CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY DYNAMO AI, 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. License. In the course of the Ongoing Services, Dynamo AImay create, fine-tune or otherwise modify models for Company (the “Fine-Tuned Models”). Additionally, the Products may be used to generate data, reports or results (the “Data Outputs”). Subject to the terms and conditions of this Agreement, Dynamo AI grants Company a nonexclusive, limited, personal, non-sublicensable, non-transferable right and license, during the applicable Initial Term or Renewal Term (as defined below), to (i) internally access and use the Products (including the Fine-Tuned Models) for the internal business purposes of Company, (ii) incorporate the Products (including the Fine-Tuned Models) into Company’s own service offerings (“Company Offerings”), and (iii) make available Company Offerings and/or the Data Outputs of Products to Company’s own end users and customers, in each case, only as provided herein. Without limiting the foregoing, Company shall not distribute or make available the Products to any third party on a standalone basis.
2. Ongoing Services; Maintenance.
2.1. Upon payment of any applicable fees set forth in the Order Form, Dynamo AI agrees to use reasonable commercial efforts to provide the Ongoing Services set forth on such Order Form. If Dynamo AI provides Ongoing Services in excess of any agreed-upon hours estimate, or if Dynamo AI otherwise provides additional services beyond those agreed in an Order Form, Company will pay Dynamo AI at its then-current hourly rates for services.
2.2. Subject to Company’s payment of the Ongoing Services fees set forth in the Order Form, Dynamo AI will provide Company with the upgrades, patches, enhancements, and/or fixes for the Products that it makes generally available to other customers (“Updates”), and such Updates will become part of the Products and subject to this Agreement.
3. Deployment; Company Obligations.
3.1. If the Order Form states that the Products will be deployed on the Company Environment, then Company acknowledges and agrees that (i) Company will provide Dynamo AI with access to the Company Environment to allow Dynamo AI to engage in any activity or action relating to the Products (including to access, manage, update, provision and monitor the Products), and Dynamo AI shall not be responsible for any issues that arise from failure to provide such access; (ii) Company shall have full control and decision-making authority regarding resource provisioning within the Company Environment (including without limitation the type, number, size and other characteristics of the computers to be provisioned); (iii) Company is responsible for ensuring that Dynamo AI’s access to the Company Environment as permitted hereunder does not conflict with or violate any agreement between Company and any third party (including without limitation any third party hosting provider with respect to the Company Environment); (iv) Company is responsible for ensuring that Dynamo AI does not have access to Company Materials that are not necessary for Dynamo AI to provide the Products and Ongoing Services; (v) Dynamo AI does not and will not host the Company Environment into which the Products are deployed or in which Company Materials may be stored; (vi) Company is solely responsible for the Company Environment, including without limitation security, backup, and disaster recovery with respect thereto; and Company expressly assumes the risks associated with the foregoing responsibilities. Accordingly, and without limiting the foregoing, Dynamo AI is not responsible for any loss, destruction, alteration, or corruption of Company Materials, except to the extent caused by the gross negligence or willful misconduct of Dynamo AI.
3.2. Upon any termination or expiration of an applicable Order Form, Company will permit Dynamo AI to access the Company Environment to remove all Dynamo AI property, including but not limited to any software associated with the Products.
4. Restrictions. Except as expressly set forth in this Agreement, 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. Company is responsible for all of Company’s activity in connection with the Products. Company (a) shall use the Products in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Company’s use of the Products (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Products in a manner that violates any third party intellectual property, contractual or other proprietary rights.
5. Company Materials; Trained Models; Personal Information.
5.1. For purposes of this Agreement, “Company Materials” shall mean any data, models, information or other material provided, incorporated or otherwise used by Company in the course of using the Products, including, without limitation, Company-owned and third party models and data sets provided by Company. Company grants Dynamo AI a license to use such Company Materials in connection with providing the Ongoing Services under this Agreement. As between the parties, Company shall retain all right, title and interest in and to the Company Materials, including all intellectual property rights therein. Company, not Dynamo AI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Company Materials. Company represents and warrants that (a) it has all rights necessary to provide the Company Materials to Dynamo AI as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy), and (b) it has made all necessary disclosures and obtained all necessary consents required in connection with providing Company Materials to Dynamo AI under this Agreement (including, without limitation, all disclosures and consents required by applicable privacy laws).
5.2. In the course of providing Ongoing Services, Dynamo AI may create Fine-Tuned Models using Company Materials (“Specially Trained Models”). Dynamo AI agrees not to provide or disclose such Specially Trained Models to any of its other customers.
5.3. Company acknowledges that the Products may contain functionality that monitors and transmits to Dynamo AI certain data regarding Company’s use of the Products that is needed to calculate the Fees. Company agrees not to disable, interrupt, or interfere with such functionality.
5.4. Company acknowledges 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 policies may be amended from time to time. Company further acknowledges and agrees that the Ongoing Services do not require, and Company agrees not to transmit or provide Dynamo AI with access to, any personally identifiable information in connection with the Ongoing Services. If Company inadvertently provides Dynamo AI with any personally identifiable information in violation of the previous sentence, Company shall promptly notify Dynamo AI and Dynamo AI shall delete such information.
6. Third Party IP and Models.
6.1. 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 Ongoing Services (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 Ongoing Services or use of the Products, 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.
6.2. 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.
7. Ownership; Feedback.
7.1. As between the parties, Dynamo AI retains all right, title, and interest in and to the Products,, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Dynamo AI for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Company hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Products” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.
7.2. 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. Nothing in this Agreement will impair Dynamo AI’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Company may develop, produce, market, or distribute.
8. Fees; Payment. Company shall pay Dynamo AI fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars and due upon receipt. Company agrees that upon issuance of each invoice hereunder, Dynamo AI may charge the full amount of such invoice to the payment method provided by Company. If Dynamo AI is unable to charge the payment method provided by Company, Company agrees to pay all amounts due on outstanding invoice(s) upon demand. 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 Products, and Ongoing Services (excluding taxes based on Dynamo AI’s net income). All Fees paid are non-refundable and are not subject to set-off. Dynamo AI may audit Company’s use of the Products at any time to verify the amounts paid and/or owed hereunder and Company will fully cooperate with such audits.
9. Term; Termination. This Agreement shall commence upon the Effective Date set forth in the Order Form, and, unless earlier terminated in accordance herewith, (a) shall continue for the Initial Term set forth therein, and (b) following the Initial Term, shall automatically renew for additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Company acknowledges that the Products contain a disabling functionality, which Dynamo AI reserves the right to enable upon the expiration or termination of this Agreement.
10. 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.
11. Indemnification.
11.1. Dynamo AI shall defend, indemnify, and hold harmless Company, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that the Products infringe, violate, or misappropriate any third party intellectual property or proprietary right. The foregoing obligations of Dynamo AI do not apply with respect to the Products or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (a) not created or provided by Dynamo AI (including without limitation any Company Materials), (b) made in whole or in part in accordance to Company specifications, (c) modified after delivery by Dynamo AI, (d) combined with other products, processes or materials not provided by Dynamo AI (where the alleged Losses arise from or relate to such combination), (e) where Company continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) Company’s use of the Products is not strictly in accordance herewith.
11.2. Company shall defend, indemnify, and hold harmless Dynamo AI, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all Losses that arise from or relate to any claim that the Company Materials or Company’s use of the Products infringe, violate, or misappropriate any third party intellectual property or proprietary right, or (c) a breach of Company’s representations or warranties under this Agreement.
11.3. Each party’s (as the “Indemnitor”) indemnification obligations hereunder shall be conditioned upon the other party (the “Indemnitee”) providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).
12. Disclaimer. COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL AI MODELS CONTAIN INHERENT RISKS, ALL OF WHICH ARE EXPRESSLY ASSUMED BY COMPANY HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
13. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR COMPANY’S BREACH OF THE RESTRICTIONS IN SECTION 5, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY COMPANY TO DYNAMO AI HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
14. Miscellaneous. This Agreement (including the Order Form and Statement of Work) represents the entire agreement between Company and Dynamo AI with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Company and Dynamo AI with respect thereto. In the event of any conflict between these Terms and the Order Form and Statement of Work, the Order Form or Statement of Work shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Dynamo AI may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. . The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. 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).