Terms & Conditions
Last Updated: August 8th, 2024
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER FORM AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE SERVICES (“YOU” OR “CUSTOMER”), AND EITHER (I) KILI TECHNOLOGY INCORPORATED, A COMPANY REGISTERED WITH VIRGINIA STATE CORPORATION COMMISSION (SCC) LOCATED 1411 BROADWAY FL 16, NEW YORK, NEW YORK 10018-3471, UNITED STATES OF AMERICA, WHEN CUSTOMER IS LOCATED IN NORTH AMERICA (INCLUDING UNITED STATES OF AMERICA, MEXICO) OR (II) KILI TECHNOLOGY SAS, A FRENCH SIMPLIFIED JOINT STOCK COMPANY REGISTERED IN THE TRADE AND COMPANIES REGISTER OF PARIS UNDER THE NUMBER 843 210 014, WHOSE HEAD OFFICE IS LOCATED 47 BOULEVARD DE COURCELLES, PARIS, FRANCE, WHEN CUSTOMER IS LOCATED OUTSIDE OF NORTH AMERICA. (“KILI”).
BY EXECUTING A SIGNED ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY SUBSCRIBING AN ONLINE SUBSCRIPTION FORM, OR OTHERWISE BY TICKING A BOX PROVIDED FOR THIS PURPOSE ON DEEPIP’S WEBSITE INDICATING ACCEPTANCE VIA ON ONLINE REGISTRATION PAGE (EACH, AN “ORDER FORM”), YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICES OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT TO THIS AGREEMENT. THE TERMS OF ALL ORDER FORMS ENTERED INTER HEREUNDER SHALL BE INCORPORATED HEREIN BY THIS REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. KILI AND CUSTOMER ARE HEREINAFTER JOINTLY DEFINED AS THE “PARTIES” OR INDIVIDUALLY A “PARTY”.
1. OVERVIEW
KILI develops and provides DeepIP, artificial intelligence tools which assist inventors, businesses and IP law firms looking to patent processes or methods, in particular in drafting patents, office actions response, creating detailed IDS forms, classifying and processing documents, and in processing information related to the lifecycle of the patent.
Customer provides, uploads, or submits into DeepIP invention description, patent claims, drawings, and/or any other data, information, and other materials embodied in any form in connection with the Software or under this Agreement (“Inputs”) and DeepIP provides to Customer draft patents, office action responses, IDS form, classified documents and other information and/or documents processed based on such Inputs (“Outputs”). Inputs and Outputs are together “Customer Data”.
DeepIP is available at the following URL https://app.deepip.ai/.
For any question or concerns about the Services or these Terms. please contact us at support@deepip.ai
2. LICENCE
2.1 License. Subject to Customer’s full compliance with this Agreement (and subject to any limitations or restrictions set forth in any applicable Order Form), KILI grants to Customer, for the subscription term defined below, a limited, non-exclusive, non-sublicensable, non-transferable, worldwide right to access and use DeepIP software products developed by KILI (“DeepIP” or “Software”) and use all support services described in the applicable Order Form. The Software and all such services are collectively referred as “Services”. For purpose of this Agreement, Software includes (i) proprietary software and its functionalities (including its API’s) edited and developed by KILI, including any updates, improvements, new versions, new releases, modifications, patches, and interfaces, and similar works derived work thereto (ii) the associated Documentation (as defined below), as well as all methods, documents, concepts, codes (source or object) related thereto.
2.2 Hosting Mode. The license is by default granted on a SaaS basis, except otherwise provided in the Order Form (the license may be made available alternatively on a Data On-Prem basis).
2.3 Scope. The License is granted for use by Customer (and its end-users) for its internal business purposes or, when Customer is a professional lawyer or a qualified attorney, for the internal business purposes of Customer’s own clients. The license is not granted for marketing, lease, pre-sale, sale or resale purposes.
2.4 Documentation. Customer may only use the Services in accordance with KILI’s documentation, meaning the official documents provided by KILI relating to the use of the Services, including without limitation technical program or interface documentation, user manuals, operating instructions, functionalities, applications, online help guide, quick reference guides and release notes (“Documentation”).
2.5 Software Modifications. KILI regularly improves, modifies and updates the functionalities of the Software to adapt to changes in the business, which are by their very nature evolving, provided any such changes and updates will not, in any case, reduce the performance or functionality and/or security of the Software or be detrimental to Customer.
3. TERM
3.1 Term of the Agreement. The term of the Agreement will begin on the date set forth in the Order Form, meaning the online subscription form or in the executed order form (or if none is provided, the date that Customer first registers for the Services) (“Start Date”) and continue in full force and effect as long as any Order Form (including, for sake of clarity, any online subscription or registration form) remains in effect, unless earlier terminated in accordance with the Agreement.
3.2 Subscription Term. The right to access the Services will start on the Start Date (or any other date specified in the Order Form) and continue in full force and effect for the period (monthly or yearly) set forth in such Order Form (including, for sake of clarity, any online subscription or registration form) (“Initial Subscription Term”), unless earlier terminated in accordance with the Agreement. Thereafter, unless otherwise agreed in writing between the Parties, the Order Form (including, for sake of clarity, any online subscription or registration form) shall automatically renew for additional successive periods of equal duration to the Initial Subscription Term (each, a “Renewal Subscription Term”), unless either Party provides written notice of non-renewal to the other at least seven (7) calendar days in case of a monthly subscription and three (3) months in case of a yearly subscription prior to the then current Initial Subscription Term or Renewal Subscription Term. Non-Renewal notice to KILI shall be sent to support@deepip.ai.
4. FEES
4.1 Fees. Customer shall pay KILI the amount of the fees set forth on the subscription page or on each duly executed order form, as applicable (the “Fees”). All payments must be made in advance save as otherwise provided in any Order Form. Fees are not subject to any set-off. Customer must immediately notify KILI of any change of address or company name and, in the case of automatic direct debit, of bank details.
4.2 Credit Card. If Customer agrees to pay by credit card via the subscription page, Customer shall pay the Fees before accessing the Services. Customer acknowledges that it cannot access the Services in case KILI has not received full payment of the Fees.
4.3 Alternative payment methods. Subject to a signed Order Form duly executed by Customer specifying that payment will be made by a payment other than by credit card, Fees will be charged in advance and in accordance with the modalities and billing frequency set forth in the Order Form. Any invoice will be due within thirty (30) calendar days from the date of the issuance of the invoice, unless otherwise agreed in the applicable order form.
4.4 Non-refundable Fees. The Initial Subscription Term and each Renewal Subscription Term being firm and irrevocable, therefore, in case Customer wishes to terminate the Agreement early before the initial or renewed expiration date, Customer agrees that KILI will not reimburse Customer for any pre-paid Fees of any unused portion of the Services and/or, as applicable, all amounts until the end of the relevant Subscription Term remain due even though Customer dies not use the Services, save in case KILI is a defaulting Party pursuant to Section 10.1 of this Agreement.
4.5 Late payment. In case of late payment, any amounts due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the minimum or maximum amount permitted by law, from the due date until paid. In case of absence of payment for self-served or pre-paid subscription, no access to the Services will be granted to Customer. If an alternative payment method and a monthly or recurring billing frequency has been agreed upon in the Order Form, in case of a significant or repeated late payment(s), and provided that no amicable solution may be found between the Parties, KILI may suspend the access and use of all or part of the Services, until outstanding amount is fully paid. KILI may also terminate the Agreement subject to prior written notice pursuant to Article 10.1. When KILI Technology SAS is the invoicing entity, an indemnity of 40 Euros (forty Euros) corresponding to a lump-sum recovery indemnity will also be due and payable, without formalities. Where the debt for recovery costs incurred exceed the amount of this indemnity, KILI Technology SAS may request additional compensation, upon justification.
4.6 Changes. Amount of the Fees is fixed during the Initial Subscription Term and during each Renewal Subscription Term. However, KILI may increase the Fees upon each renewal of the then-current subscription term, subject to a written prior notice to Customer of forty-five (45) calendar days in case of a yearly subscription and twenty (20) calendar days in case of a monthly subscription. Customer’s continued use of the Services following the effective date of such amendment to the Fees shall be deemed acceptance of the amended Fees. If Customer does not agree to the amended Fees, the applicable Order Form will expire at the end of the relevant Initial or Renewal Subscription Term, without any indemnities, and Customer may not use the Services.
4.7 Taxes. Any Fees hereunder are exclusive of all taxes, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Customer agrees to pay any applicable value added, sales, or other transaction taxes, fees, charges, or surcharges that are owed under this Agreement under any applicable law. Each Party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases.
4.8 Sales and Use Tax. KILI Technology Incorporated is only considered as having a sales tax nexus in the following States: Florida, Georgia, Nevada and Virginia (the “Nexus States”). In all States other than the Nexus States, KILI Technology Incorporated is not considered as having a sales tax nexus in the Customer’s State and is not required to collect and remit sales tax on sales made to Customers located in or using our products outside of the Nexus States. Certain Customers are required to file a sale and use tax return remitting any unpaid taxes. Customer is responsible for consulting with its own tax advisor and complying with the regulations of the State where Services are used to determine if it is required to file such returns. By default, KILI Technology Incorporated invoices will be issued based on the assumptions that Customer does not have a Sales Tax Exemption Certificate nor a Sales Tax Multiple Points of Use Certificate, nor any other equivalent certificates. KILI Technology Incorporated. will issue invoices with the sales tax amount based on the shipping address indicated on Customer’s Order Form. If Customer has a Sales Tax Exemption Certificate, a Sales Tax Multiple Points of Use Certificate, or any other equivalent certificate, Customer shall submit it to KILI Technology Incorporated before the starting date of the Services.
5. INTELLECTUAL PROPERTY
5.1 Definition. For purposes of this Agreement, “Intellectual Property Rights” means (i) patent, copyrights, and related rights, moral rights, rights in computer software and other neighbouring rights, designs (including registered designs and design rights), trademarks, service marks, trade or business names, brand names, domain names and URLs, rights in trade secrets, knowhow and confidential and undisclosed information (such as inventions, whether patentable or not), rights in logos and patents, database; and (ii) all registrations or applications to register, renew and/or extend any of the items referred to in paragraph (i); and (iii) any other rights of a similar nature, however designated, whether registrable, registered or not, in any country.
5.2 Pre-Existing Elements. Except as otherwise specifically set out in the Agreement, each Party retains ownership of any Intellectual Property Rights on any outcome, document, methodology, know-how or process, documentation, data, database, information or file, software, program or other elements in any form whatsoever, including studies, specifications, graphic works, documentation, reports, results, signs, works, inventions, functional or technical analyses, as well as any commercial rules or requirements, user manuals, user guides, instruction manuals, training materials, instructions and documents of any kind created or owned by the Parties (including their Affiliates), or licensed to them by third parties, before or completely independently from the performance of the Agreement, including any amendments and/or improvement thereto (“Pre-Existing Elements”). In no circumstances may the Agreement be deemed to grant either Party any intellectual property right in the other Party’s Pre-Existing Elements except as otherwise expressly provided in the Agreement.
6. CUSTOMER DATA
6.1 Ownership. Customer shall retain all rights, titles and interests in and to Customer Data, including all Intellectual Property Rights therein. KILI irrevocably assigns to Customer all its rights, titles and interests in and to Outputs.
6.2 Confidential Information. KILI acknowledges that Customer Data are Confidential Information and may include information that is covered by the attorney-client privilege and agrees to keep same in the strictest confidence pursuant to Section “Confidentiality”.
6.3 Encryption. KILI shall store and transmit all Customer Data in an encrypted format using industry standard encryption methods and technology. The encryption keys used shall be stored securely and access shall be restricted to only those employees with a need to access the Customer Data. KILI shall encrypt all Customer Data both in transit and at rest (on storage media).
6.4 Localization. KILI shall ensure that all Customer Data received and/or processed as part of the use of Software under this Agreement shall be stored and processed exclusively on servers located within the territory(ries) mentioned in the Order Form (“Territory”). KILI shall not transfer, store, or process any such data outside the Territory without the prior written consent of Customer.
6.5 Use. Customer grants to KILI a non-exclusive, worldwide, royalty-free, irrevocable and fully paid up right during the term of the Agreement, to access, use, process, store and transmit Customer Data to provide the Services pursuant to the terms and conditions of these Terms. KILI shall not use Customer Data for the purpose of training, re-training or improving any AI Models, unless agreed by both Parties in writing.
6.6 Third-Party Providers. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (such as Third-Party LLM Providers). KILI does not make any representations or warranties with respect to third-party services or third-party providers, except that, with respect to providing the Services, KILI shall only use third-party providers that covenant:
- to use Customer Data to the extent strictly necessary for KILI to be able to provide the Services under this Agreement;
- to keep such Customer Data confidential under terms at least as restrictive as Section “Confidentiality”;
- that Customer Dara are not available to any other customers or prospective customers;
- that Customer Data are not used to train, retrain, improve their AI models or AI models for other third parties;
- that Customer Data are not used to improve any third-party products or services;
- with respect to Azure, Customer Data are not available to OpenAI’s architecture but only to Azure. In addition, given that Customer Data are highly confidential and/or legally-regulated input data, KILI has requested and obtained from Microsoft an exemption from Azure’s abuse monitoring and human review according to which Microsoft warrants KILI that Microsoft/Azure do not store any prompts and completions associated with the approved Azure subscription for which abuse monitoring is configured off and that consequently there will be no human review by Microsoft/Azure.
6.7 Destruction. Upon termination/expiration of this Agreement or upon the request of Customer, KILI shall promptly destroy all Customer Data in its possession, including any copies thereof, and provide written certification of such destruction. It is therefore up to the Customer to make the appropriate downloads or copies of the applicable Customer Data.
7. DEEPIP INTELLECTUAL PROPERTY
7.1 Ownership. The Software and Documentation, any modifications thereto and all worldwide Intellectual Property Rights therein, remain the exclusive property of KILI. All rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved by KILI. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, Documentation, or any part thereof.
7.2 Customer’s Feedback. If Customer provides suggestions, comments or other feedback to KILI with respect to the Services, and in particular (but not limited to) concerning the features and functionalities of the Software (“Feedback”), Customer irrevocably grants to KILI a royalty-free, non-exclusive, fully paid up, irrevocable, worldwide license in and to all Feedback including all Intellectual Property Rights therein to the extent that Customer is able to do so. Customer accepts that KILI may freely use and exploit such Feedback. Customer will not earn or acquire any rights or licenses in the Software or in any KILI Intellectual Property Rights on account of this Agreement or Customer's performance under this Agreement, even if KILI incorporates any Feedback into the Services.
7.3 Usage Data. “Usage Data” means data, information, prompt or other material submitted to, collected by, or generated by KILI and statistics derived from Customer’s use of the Services, but only in aggregate, anonymized and de-identified form. Customer agrees that KILI may use, store, and disclose Usage Data to analyse and improve the Services.
8. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS
8.1 Customer Responsibilities. Customer shall have sole responsibility for the accuracy, quality, integrity, of all Inputs. Customer represents and warrants that Inputs and its use hereunder will not contain any viruses, worms or other malicious computer programming codes intended to damage KILI’s Software. Customer shall have sole responsibility for providing, uploading, submitting Inputs onto DeepIP and for all its users’ activity on Customer’s account.
8.2 Restrictions of Use. Customer shall not, and shall not allow or encourage any User or any other third party (a) to reverse engineer, decompile, disassemble the Software or any portion of it, derive, determine or attempt to derive or determine the source code, object code, or the underlying ideas, algorithms, structure or organization of the Software (except as expressly permitted by law), (b) to modify, adapt, alter, translate, merge, develop versions or derivative works based on the Services, (c) to copy or make derivative works based on any part of the Services or Documentation, (d) to sublicense, lease, sell, resell, rent, loan, distribute, pledge, assign, transfer the Services, (e) to allow the use of the Services for the benefit of a third party (except with respect to Customer’s own clients as contemplated by the Agreement), (f) to remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of KILI or its licensors on the Software or any copies thereof, (g) to upgrade, improve or extend features or functionalities of the Software or otherwise, (f) to interfere in any manner with the operation of the Services, (h) to use the Services to build a similar or competitive product or service; (k) to attempt to access the Services through any unapproved interface; (l) to otherwise use the Services in any manner that exceeds or bypass the scope of use granted by KILI to Customer pursuant to the Agreement.
8.3 Personal Data Restrictions. Customer’s personally identifiable information is not required for the Services to operate or for training purposes. Customer shall ensure that Inputs do not contain any personally identifiable information, notably, sensitive data such as (i) identification numbers (e.g. social security number, passport number, account number, etc.), (ii) any data related to his/her physical, physiological, mental, economic, cultural or social identity (e.g. name, first name, date of birth, biometrics data, fingerprints, health data, bank details, employment information), (iii) location data, (iv) racial, political, religious, sexual, criminal information, and more generally (v) any information or combinations of information that falls within the definition of “personal data” or “sensitive data” or any similar designation under any applicable law or regulation relating to privacy or data protection.
8.4 Acceptable Use Policy (AUP). Customer represents and warrants that it will use and that its users will use the Software in accordance with the AUP as available and updated from time to time on DeepIPi’s website or as attached hereto as Attachment A and which are hereby incorporated into these Terms by reference. In particular, access codes (login and password) granted to Customer’s users are strictly confidential personal and non-transferable. The management and safekeeping of access codes, in terms of confidentiality and security, are the responsibility of Customer and its users. Customer and users shall notify Kili immediately in the event of loss, theft or fraudulent use by e-mail to the following address: support@deepip.ai. Access codes may be immediately cancelled or suspended by Kili in case of fraudulent use of an access code.
9. CONFIDENTIALITY
9.1 Definition. “Confidential Information” means any information, documents and data of any kind of a Party disclosed to or accessed to by the other Party before and during the course of entering into and performing this Agreement, whether orally, in writing or otherwise relating to, without restriction, strategies, business operations, business plans, processes, plans or intentions, financial information, pricing, know-how, design rights, trade secrets, business affairs and market opportunities. Information not specifically designated as confidential shall be treated as such when it can reasonably be expected to provide a third-party with a financial or competitive advantage or when its disclosure may constitute financial harm to either of the Parties. Confidential Information of KILI includes the Services, Software, its features, functionalities, and Feedback. All Customer Data are always Confidential Information and are always deemed to be specifically designated as confidential hereunder.
9.2 Undertaking. Each Party agrees that it will treat the Confidential Information of the other with the same care it uses with its own Confidential Information, and at a minimum with a reasonable degree of care. Each Party agrees that it will limit disclosure of the other Party’s Confidential Information to those of its employees and consultants who have a bona fide need-to-know such information and who have binding and written agreements that contains use and nondisclosure restrictions at least as protective as those set forth herein. Neither Party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither Party will disclose to third parties the other's Confidential Information without the prior written consent of the other Party, except as permitted by this Agreement. Each Party shall use all its reasonable endeavours: (a) to minimise the risk of unauthorised disclosure or use by its employees and officers of Confidential Information; (b) to keep such information secure and protected against theft, damage, loss or unauthorised access.
9.3 Restrictions. The restrictions on use and disclosure of information shall not apply to any information which the Receiving Party can prove: (a) was already known to it prior to its receipt thereof from the Disclosing Party; (b) was subsequently disclosed to it lawfully by a third party without duty of confidence or restriction as to use who did not obtain the same (whether directly or indirectly) from the Disclosing Party; (c) was in the public domain at the time of receipt by the Receiving Party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this Section; (d) is required by law to be disclosed under any court order, or administrative process. In the event that the Receiving Party is requested or required to make disclosure of any Confidential Information, the Receiving Party agrees that it will promptly notify the Disclosing Party in writing, take all reasonable steps requested by the Disclosing Party to defend against the compulsory disclosure, and permit the Disclosing Party to take control with a counsel of its choice in any proceeding relating to the compulsory disclosure.
9.4 Equitable Relief. Each Party acknowledge that in the event of any breach or threatened breach of this section by either Party, the other Party may suffer irreparable harm and not possess an adequate remedy at law. Accordingly, each Party shall have the right to seek injunctive or other equitable relief to restrain such breach or threatened breach.
9.5 Survival. The obligations imposed by this Section shall survive for five (5) years after the expiry or termination of this Agreement, with the exception of Customer Data, which shall be destroyed on termination as provided for in Section 6.7, and in which the confidentiality obligation continues indefinitely, and when such indefinite term is held invalid or unenforceable by applicable by a court of competent jurisdiction, the confidentiality obligation shall continue at least ten (10) years.
9.6 Commercial Reference. KILI may use and display Customer’s name and/or logo on its marketing materials, website, social network accounts, and/or when replying to invitations to tender or within the framework of commercial proposals for the sole purpose of communicating the existence of their business partnership (and not on the content of the Agreement), subject to express written approval by Customer. Customer shall have the right to request for any such mention to be taken down at time at its own discretion.
10. TERMINATION
10.1 Termination for material breach. Either Party may terminate this Agreement and/or any Order Form if the other Party materially breaches this Agreement (including the AUP), and such breach remains uncured more than thirty (30) days (or 7 (seven) days in a case of a monthly subscription) after receipt of written notice of such breach sent by registered letter with acknowledgment of receipt or registered letter, without prejudice to any other rights and remedies it may have under this Agreement or otherwise.
10.2 Effect of Termination. Upon termination or expiration of an Order Form or of this Agreement, (a) all licenses and right to use the Services granted hereunder will immediately terminate, (b) each Party shall promptly return to the other, except as otherwise provided, all of its Confidential Information (including all copies and extracts) and all other property (whether tangible or intangible) in its possession or control and destroy or permanently erase (if technically feasible) all documents and all records (in any media) created by it or on its behalf, and in particular KILI shall promptly destroy or permanently erase all Customer Data still in its possession and (c) in case Customer if the defaulting Party, any amounts owed to KILI under this Agreement shall become immediately due and payable, including the remaining Fees due until the end of the Initial Subscription Term or of the Renewal Subscription Term.
10.3 Survival. All provisions of this Agreement that by their nature shall survive termination, including without limitation accrued payment obligations, Customer Data provisions, Intellectual Property provisions, warranty disclaimers, indemnification obligations and limitations of liability, confidentiality, miscellaneous, venue and governing law will survive expiration or termination of this Agreement for any reason.
11. WARRANTIES AND DISCLAIMERS
11.1 Limited Warranty. KILI represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. KILI further warrants to Customer that the Services will operate free from Errors (meaning any reproducible failure of the Software to substantially conform to the Documentation) during the term of the Agreement, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Services not in accordance with this Agreement or as specified in the Documentation (b) failure or variations in electrical power or the telecommunications network. To the extent permitted by law, KILI’s sole liability under the Software warranty will be, in KILI’s reasonable commercial discretion, a repair or replacement of the Services, or if KILI determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement.
11.2 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND FEEDBACK ARE PROVIDED “AS IS” AND KILI AND CUSTOMER MAKE NO (AND HEREBY DISCLAIM ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER IS ADVISED TO SAFEGUARD CUSTOMER DATA AND ITS OTHER DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION. IT IS UP TO THE CUSTOMER TO TAKE REASONABLE MEASURES TO PROTECT ITS OWN HARDWARE, DATA, AND/OR SOFTWARE STORED ON ITS COMPUTER EQUIPMENT AGAINST ANY DAMAGE.
11.3 ACCESS TO THE SOFTWARE IMPLIES KNOWLEDGE AND ACCEPTANCE OF THE CHARACTERISTICS AND LIMITATIONS OF THE INTERNET, IN PARTICULAR WITH REGARD TO RISKS OF INTERRUPTION, AND MORE GENERALLY, THE RISKS INHERENT TO ANY CONNECTION AND TRANSMISSION ON THE INTERNET, THE LACK OF PROTECTION OF CERTAIN DATA AGAINST POSSIBLE MISAPPROPRIATION AND THE RISKS OF CONTAMINATION BY ANY VIRUSES CIRCULATING ON THE NETWORK, PROVIDED KILI SHALL IMPLEMENT ALL MEASURES NECESSARY TO ENSURE THE FUNCTIONING OF THE SOFTWARE ACCORDING TO THE AGREEMENT, INCLUDING ANY SECURITY MEASURES AND PROCESSES SUBSTANTIALLY CONSISTENT WITH GENERAL INDUSTRY STANDARDS.
11.4 CUSTOMER ACKNOWLEDGES THAT KILI IS NOT A LAW FIRM, PROFESSIONAL LAWYER OR QUALIFIED ATTORNEY; KILI MAY NOT PROVIDE LEGAL ADVICE; AND THAT ANY INFORMATION CONTAINED ON, OR OUTPUTS GENERATED BY THE SERVICES ARE NOT INTENDED TO BE USED AS A SUBSTITUTE FOR LEGAL ADVICE OR LEGAL OPINION AND ARE NOT GUARANTEED TO BE ACCURATE, COMPLETE OR UP-TO-DATE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS ADVISED TO CONSULT WITH ITS OWN QUALIFED LAWYERS AND OTHER EXPERTS AND THAT NO ATTORNEY-CLIENT RELATIONSHIP OR PRIVILEGE IS CREATED WITH USING THE SERVICES.
12. LIMITATION OF LIABILITY
12.1 EXCEPT AS OTHERWISE REQUIRED BY LAW AND EXCEPT FOR AND FOR ANY VIOLATION OF ARTICLE 5 (INTELLECTUAL PROPERTY), ARTICLE 7 (DA VINCI INTELLECTUAL PROPERTY), ARTICLE 8.2 (RESTRICTIONS OF USE), ARTICLE 9 (CONFIDENTIALITY), ARTICLE 15 (INDEMNIFICATION), AND EXCEPT FOR BREACH TO PAY FEES, THE LIABILITY OF KILI TO CUSTOMER AND CUSTOMER TO KILI ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES, OR FOR ANY ERROR OR DEFECT IN THE SERVICES, HOWEVER CAUSED, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO KILI DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
12.2 IN NO EVENT WILL KILI OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
13. FORCE MAJEURE
13.1 Neither Party shall be liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from an event, circumstance or cause beyond its reasonable control and that could not have been prevented or avoided by the exercise of all due diligence, including, but not limited to: natural catastrophes, war, acts of terrorism, riots, insurrection, fires, flood, storm, explosions, acts of God, public power outages, epidemic, pandemic, Domain Name Server issues outside its direct control, cyberattack, global internet disruption or downtime caused by third parties (including viruses, bugs or denial of service attacks), labor strikes or shortages (strikes and other labor unrest that affect only a Party), mandatory injunctions by public authorities (such as import bans, embargoes) (“Force Majeure Event”).
13.2 The Party owing the affected obligation shall notify the other Party as soon as possible of the occurrence of such a Force Majeure Event and the Agreement shall be suspended for the duration of the event in question. In all cases, the Party owing the affected obligation shall do everything in its power to avoid, eliminate or reduce the causes of the delay and resume the performance of its obligations to the fullest extent possible as soon as the event has disappeared or reduced. If performance is still impossible at the end of a period of more than three (3) weeks from the date of the notification or as soon as performance is definitively impossible, each Party has the right to terminate the Agreement by registered letter with acknowledgment of receipt addressed to the other Party.
14. INSURANCE
KILI warrants that it holds the necessary insurance policies from insurer(s) of its choice in an amount corresponding to the risks and liabilities incumbent upon it under this Agreement. KILI undertakes to maintain these insurances in force for the duration of the Agreement. Kili warrants that it holds the following insurance policies:
(i) Workers Compensation Insurance as prescribed by the law of the state or other jurisdiction in which work is to be performed ;
(ii) Employers Liability Insurance with limits of at least $500,000 per occurrence;
(iii) Comprehensive General Liability Insurance, including contractual liability with limits of at least $500,000 per occurrence and $1,000,000 aggregate;
(iv) Cyber Liability/Errors and Omissions Liability Insurance with limits of at least $500,000 per occurrence and aggregate.
15. INDEMNIFICATION
15.1 Each Party (“Indemnifying Party”) will defend at its expense the other Party, and each of its and its affiliates, employees, contractors, directors, suppliers, representatives (collectively “Indemnitee”), from all actions, claims, liabilities, and expenses paid or payable to a third party (including reasonable attorney fees) (“Claims”) and will pay any settlement the Indemnitee Party makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a Claim that arise from or relate to, (a) in relation with KILI as Indemnifying Party, a Claim by any third party alleging that the Services infringes such third party’s Intellectual Property Right or trade secret rights under any applicable laws, or (b) in relation to Customer as Indemnifying Party, a Claim by any third party alleging that Customer Data or Customer’s use of the Services infringe such third party’s Intellectual Property Right or trade secret rights under any applicable laws,
15.2 Each Indemnitee’s obligations as set forth above **are expressly conditioned upon each of the foregoing: (a) the Indemnitee will promptly notify the Indemnifying Party in writing of any threatened or actual Claim (provided that a failure to promptly notify shall only impact the indemnification obligations to the extent it actually hindered or prevented the defense of the Claim); (b) the Indemnitee has the option to have sole control of the defense or settlement of any Claim; and (c) the Indemnitee will reasonably assist and cooperate the Indemnifying Party to facilitate the settlement or defense of any Claim.
15.3 With respect to KILI, if any portion of the Services become, or in KILI’s opinion is likely to become, the subject of a claim of infringement, KILI may, at KILI’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Services.
15.4 The Indemnifying Party will have no indemnification obligation under this section or otherwise with respect to any infringement Claim based upon any use of the Services not in accordance with this Agreement.
16. ASSIGNMENT
Neither Party may assign or otherwise transfer this Agreement or any of its rights and obligations herein, to any third party without obtaining the prior written consent of the other Party, provided however that either Party may assign this Agreement or any of its rights and obligations hereinto any of Affiliates or to a party’s successor-in-interest as part of a direct or indirect change of control merger, acquisition, reorganization or sale of all or substantially all of the business or assets, or other operation of law, without obtaining the prior written consent of the other Party. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
17. NOTICE
Unless otherwise provided herein, all notices to Customer must be sent, when by email, to the email address set forth in the most recent Order Form, or updated information provided in Customer’s account and all notices to KILI must be sent to support@deepip.ai, or when delivered by letter (and sent via first class post), by registered letter with acknowledgment of receipt to the postal address mentioned in the Order Form.
18. MISCELLANEOUS
The failure or delay by either Party to enforce at any time the provisions of this Agreement or to request performance by the other Party of any such provision, shall in no way constitute a waiver of such provisions.
If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both Parties in writing.
These Terms, together with any Order Form(s), AUP, and any documents referenced in the Terms or Order Form(s), if any, are incorporated herein, unless expressly provided otherwise herein, constitute the full and complete understanding of the Parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter.
In the event of a conflict between the Terms and any other agreement between Customer and KILI (including AUP, Order Form), the Terms shall prevail.
This Agreement is drafted in English. In the event this Agreement is translated into one or several other languages, all translations will not be binding on the Parties, and if there is a discrepancy between the English version and the translated text, the English version shall prevail.
The relationship between the Parties under this Agreement is that of independent contractors. This Agreement do not create an association or joint-venture. Neither Party has authority to create or assume in the other’s name or on the other’s behalf any obligation, express or implied, or to act or purport to act as agent or representative on behalf of the other for any purpose whatsoever. Neither Party is the employer, employee, agent, partner or co-venturer of or with the other.
Free Trial. KILI may grant certain licenses “for free” or “for trial”, or under a similar designation, for which KILI has no obligation to provide any support services. The trial expires on the last day of the trial period specified in the Order Form. BY DEROGATION TO SECTION 12.1, EACH PARTY’S LIABILITY CAP SHALL NOT TO EXCEED USD 1,000 (ONE THOUSAND US DOLLARS).
19. GOVERNING LAW
This Agreement and any action related thereto will be governed and interpreted by and under the laws indicated below, depending on Customer domicile/headquarters, without regard to conflicts of law provisions. When Customer is located in North America, this Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York. When Customer is located outside North America, this Agreement and any action related thereto will be governed and interpreted by and under the laws of France. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. VENUE
IN THE EVENT OF FAILURE TO REACH AN AMICABLE SOLUTION, CUSTOMER IN NORTH AMERICA EXPRESSLY CONSENTS TO THE PERSONAL JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS OF NEW YORK COUNTY, NEW YORK (USA) FOR ANY LAWSUIT FILED THERE AGAINST CUSTOMER BY KILI ARISING FROM OR RELATED TO THIS AGREEMENT. IN THE EVENT OF FAILURE TO REACH AN AMICABLE SOLUTION, CUSTOMER OUTSIDE NORTH AMERICA EXPRESSLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE PARIS COURTS (FRANCE) FOR ANY LAWSUIT FILED AGAINST CUSTOMER BY KILI ARISING FROM OR RELATED TO THIS AGREEMENT.