OctoML Compute Service
Oct 12, 2023
TERMS AND CONDITIONS
- OctoML Compute Service. The OctoML Compute Service (the “Compute Service”) means OctoML’s software-as-a-service solution for optimizing, packaging, and serving machine learning models and weights and hosting of Customer Data. The Compute Service also includes (a) software that enables Customer to access and use the Compute Service (collectively, the “Software”); (b) one or more software development kits that enables Customer to create executable object code that interacts with the Compute Service (each, an “SDK”) (Software and SDK collectively referred to as “Client Software”); (c) other information, data, and materials provided to Customer, including written guidelines, documentation, policies or other instructions that describe the functionality and use of the services (“Documentation”); (d) and any related services that OctoML agrees to provide to Customer from time to time.
- Customer Data. “Customer Data” means (a) hosted machine learning models submitted to the Compute Service by or on behalf of Customer (each, a “Customer Model”); (b) model prompts submitted to the Compute Service by or on behalf of Customer (“Prompts”); (c) any and all other data or information submitted to the Compute Service by or on behalf of Customer, including weights, code, logic and training materials; and (d) all model outputs generated in response to Prompts.
- Sample Data. As part of the Compute Service, OctoML may make available sample data (including from third-party sources) to Customer during the Term (“Sample Data”). Customer acknowledges that Sample Data is example data only, which may not be complete, current, or accurate. In addition to other restrictions on how the Compute Service may be used, Customer will not (and will not permit any third party to) copy or export any Sample Data and agrees that OctoML may delete or require Customer to cease using Sample Data at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SAMPLE DATA IS PROVIDED “AS IS” AND OCTOML WILL NOT PROVIDE ANY WARRANTY, INDEMNITY OR OTHER OBLIGATIONS WITH RESPECT TO SAMPLE DATA.
- Access to the Compute Service. Customer and its employees and contractors acting on its behalf may access and use the Compute Service during the Term (as defined below) in accordance with the Documentation and the terms and conditions of this Agreement. Customer remains responsible for all acts and omissions of its users. Customer will ensure that all such users keep their account credentials, including user IDs, passwords, and tokens, for the Compute Service strictly confidential and will remain responsible for any and all actions taken using Customer’s accounts. When the relationship between a user and Customer ends, Customer will terminate the user’s credentials and ensure that such user has no further access to the Compute Service. To the extent use of the Compute Service requires Customer to install Client Software, subject to all of the terms and conditions of this Agreement, OctoML grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Compute Service and otherwise in accordance with this Agreement.
- Customer Products. During the Term, Customer may integrate the Compute Service into Customer’s own products, services, and other projects (collectively “Customer Products”) in accordance with the Documentation and the terms and conditions of this Agreement. Customer may not sell, rent, lease, or transfer the Compute Service on a “stand-alone basis.” Accordingly, Customer Projects must reasonably add value beyond the value of the Compute Service. All materials submitted to the Compute Services through Customer Products will be regarded as having been submitted on Customer’s behalf, and Customer will be responsible for all end users accessing the Compute Services through Customer Products (“End Users”).
- Purchases and Payments. Customer may be required to purchase or pay a fee to access all or some of the features and functions of the Compute Service once any usage limits stated in the Documentation are reached. Customer is responsible for all usage fees associated with the Customer’s User Account, including usage fees incurred by End Users. Customer will provide OctoML with current, complete, and accurate purchase, payment, billing, and account information when creating an account on the Compute Service (a “User Account”). Customer’s User Account is part of the Compute Service, and Customer will promptly update Customer’s User Account information, including any billing and account information, which may include Customer’s email address information related to Customer’s authorized payment method, or methods, as needed so that OctoML can complete all payment and billing transactions and contact Customer, as needed.
If Customer’s User Account incurs fees, OctoML will either charge or bill Customer using the billing and account information that Customer provides to OctoML or, if applicable, through an online billing account for purchases made using Customer’s User Account. If Customer has provided an authorized payment method, Customer authorizes OctoML to charge Customer’s authorized payment method for any purchases authorized or fees incurred by Customer. If Customer has not provided an authorized payment method, Customer will pay invoices issued by OctoML by the method stated in the invoice within 30 days of the invoice’s date.
Sales taxes, value added taxes, or similar taxes and surcharges that OctoML is required by applicable law to collect and remit will be added to the price of incurred fees and purchases as deemed required by OctoML. Customer is solely responsible for all other taxes or surcharges. All payments will be stated by OctoML and paid by Customer in US Dollars. OctoML may, by updating the Documentation, change its prices or unpaid/paid usage limits at any time. Customer agrees to pay all charges or fees at the prices in effect at the time of the usage or purchases.. OctoML reserves the right to correct any errors or mistakes in pricing, even if OctoML has already requested or received payment. OctoML also reserves the right to refuse any purchase made using Customer’s User Account.
Access to certain features and functions of the Compute Service may require enrollment in a payment plan involving automatic renewal (a “Recurring Subscription”). If Customer enrolls in a Recurring Subscription, Customer authorizes OctoML to bill Customer or otherwise charge Customer’s authorized payment method upon each renewal of the Recurring Subscription without requiring Customer’s prior approval for each recurring charge. The length of the Recurring Subscription will be provided when Customer first enrolls. Any Recurring Subscription will automatically renew until Customer cancels the Recurring Subscription. Customer may request cancellation of a Recurring Subscription by emailing firstname.lastname@example.org. Customer may request cancellation of a Recurring Subscription at any time, but Customer must request cancellation of a Recurring Subscription at least 30 days before the end of its current subscription period to avoid being charged for the next subscription period. If Customer cancels a Recurring Subscription before the end of its current subscription period, OctoML will not refund any subscription fees already paid. OctoML may change the prices charged for Recurring Subscriptions at any time by updating the pricing listed in the Documentation; provided, however, such updated pricing will only apply to Customer’s Recurring Subscription starting at its next renewal. If Customer does not agree to these price changes, Customer must cancel its Recurring Subscription before the changes take effect.
- Prohibited Activities. Customer will not, and will not permit others to, access or use the Compute Service other than as expressly permitted by the Documentation and this Agreement. In addition to the other limitations and restrictions in the Documentation and elsewhere in this Agreement, Customer will not, and will not permit others to, do or attempt to do any of the following: (1) reproduce, modify, make derivative works of, decipher, decompile, disassemble, or reverse engineer any aspect of the Compute Service; (2) modify or remove any copyright notices or other proprietary rights notices of OctoML or its licensors in or accompanying the Compute Service; (3) make the Compute Service available in any manner to any third party for use in the third party’s business operations, other than through Customer Products; (4) access or use (or permit third parties to access or use) the Compute Service, including the Software and SDKs, in order to build or support any products or services competitive with the Compute Service or OctoML’s other products and services; (5) inaccurately or falsely represent Customer’s identity, current location, demographic location, address, or affiliations, or otherwise inaccurately or falsely represent Customer to OctoML; (6) circumvent, disable, or otherwise interfere, directly or indirectly, with any security-related features of the Compute Service, including features that prevent or restrict the use, downloading, redistribution, and/or reproduction of information, data, and other materials provided to Customer and others via the Compute Service; (7) engage in unauthorized framing of or linking to the Compute Service; (8) interfere with, disrupt, or create an undue burden on the Compute Service, including the Software, or any of the hardware, networks, or other systems that OctoML owns or controls; (9) upload or transmit viruses, Trojan horses, or other harmful code or materials that interfere with the uninterrupted use and enjoyment of the Compute Service by OctoML or others or modifies, impairs, disrupts, alters, or interferes with the access to or use, features, functions, operation, or maintenance of the Compute Service; (10) use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Compute Service, or using or launching any unauthorized script or other software; (11) use the Compute Service to mine for cryptocurrency; (12) use the Compute Service to mislead others about Customer’s identity or the origin of a message or other communication, or impersonate or otherwise misrepresent Customer’s affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (13) use the Compute Service (i) to promote, solicit or generate inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, or otherwise objectionable or unlawful content or activities; (ii) in such a way that is harmful to minors; (14) use the Compute Service in any way that violates the Acceptable Use Policy. Without limiting OctoML’s other rights under this Agreement, if OctoML determines that Customer’s User Account has been used in connection with activity prohibited by the Documentation or this Agreement or otherwise exceeds reasonable limits, including those described in this paragraph, OctoML may cancel, suspend, or place limits on Customer’s User Account, including, for example, imposing rate or velocity limitations on Customer’s User Account usage.
- Customer Models and Customer Data. Subject to the terms of this Agreement, Customer hereby grants to OctoML a non-exclusive, worldwide, royalty-free, and sublicensable (through multiple tiers) license to use, reproduce, create derivative works of, publicly perform, and publicly display Customer Data in connection with OctoML providing the Compute Service to Customer. Except for the license Customer grants to OctoML, as between OctoML and Customer, Customer retains all rights in and to Customer Data, excluding any portion of the Compute Service included in the Customer Data.
- Customer Obligations. Customer will ensure that Customer’s use of the Compute Service, including any submission or generation of Customer Data by End Users, is at all times compliant with Customer’s privacy policies and all local, state, federal and international law, regulations and conventions applicable to Customer and OctoML, including, without limitation, those related to data privacy, data transfer, international communications and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to OctoML that Customer has sufficient rights in the Customer Data to grant the rights granted to OctoML in Section 8 (Customer Models and Customer Data) above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. In addition, Customer specifically agrees not to submit, and not to allow End Users to submit, to the Compute Service any Customer Data consisting of: (a) payment card industry data; or (b) personal health information, patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“HIPAA Data”). “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Customer acknowledges that OctoML is not a Business Associate or subcontractor (as those terms are defined in HIPAA). OctoML will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules, or regulations. Customer will not (a) hold itself out as a reseller of the Compute Service, (b) make any legal representations, guarantees or warranties of any type on behalf of OctoML or with respect to the specifications, features, capabilities or otherwise concerning the Compute Service, (c) describe the Compute Service in a manner inconsistent with the Documentation made publicly available by OctoML, or (d) engage in any deceptive, misleading illegal or unethical practices related to this Agreement or the Compute Service. Customer shall indemnify, hold harmless and, at OctoML’s option, defend OctoML, its subsidiaries, and its affiliates and each of their respective officers, directors, agents, partners, and employees (individually and collectively, the “OctoML Parties”) from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any allegation, claim or demand arising from or relating to any Customer Data, Customer Products, End Users, or any breach or alleged breach by Customer of this Section 7. Customer will promptly notify OctoML of any such allegations, claims or demands and cooperate with the OctoML Parties in defending such allegations, claims or demands.
- Optimized Models. As part of the Compute Service, Customer may be allowed to access or create fine-tuned or optimized versions of machine learning models (each, an “Optimized Model”). Although Customer continues to own any Customer Data embedded in or used to create an Optimized Model, Customer does not own the Optimized Model. Optimized Model are part of the Compute Service and may only be used by Customer during the Term as permitted by this Agreement. Customer may not use or make Optimized Models available apart from the OctoML platform.
- Confidential Information. The Parties may disclose to each other information identified at the time of disclosure as confidential or which should be reasonably known by the receiving Party to be confidential (“Confidential Information”), which may include information concerning their respective businesses and technology. The OctoML Technology (as defined below) is the Confidential Information of OctoML and Customer Data is the Confidential Information of Customer, in each case without any marking or further designation. Except as authorized herein, the receiving Party will (i) hold in confidence and not disclose any Confidential Information to third parties and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a need to know (including, for OctoML, the subcontractors referenced in Section 20), provided that such representatives are bound to confidentiality obligations no less protective of the disclosing Party than this Section and that the receiving Party remains responsible for compliance by any such representative with the terms of this Section. These restrictions on disclosure will not apply to any information which: (a) is or becomes generally known or publicly available through no act or omission of the receiving Party; (b) is known by the receiving Party without confidentiality restriction at the time of receiving such information, as shown by written records; or (c) is furnished to the receiving Party by a third party without confidentiality restriction. The receiving Party may make disclosures to the extent required by law or court order, provided the receiving Party notifies the disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving Party the disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
It will not, however, be a breach of this Section 11 or any other provision of this Agreement for OctoML to generate model outputs for another customer that are the same or similar to model outputs generated for Customer. The Parties acknowledge that due to the nature of machine learning, models may produce the same or similar outputs in response to prompts from different customers.
- Intellectual Property Rights. Customer agrees that OctoML and its licensors (other than Customer) retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) to the Compute Service, including, but not limited to, any and all techniques and learnings relating to the improvements or modifications that OctoML implements or otherwise develops in connection with performance of the Compute Service; any statistical or logging data (including order of operation, timing, and performance data) obtained during performance of the Compute Service; any source code, object code, sample code, libraries, development tools, displays, designs, images, graphics, text, data, databases, algorithms, video, and audio related to the Compute Service; any and all trademarks, service marks, and logos identifying or accompanying the Compute Service; and any authorized or unauthorized enhancements, updates, upgrades, improvements, translations, adaptations, or other modifications to or reproductions or derivative works thereof (collectively “OctoML Technology”), subject to Customer’s ownership of the Customer Data. The Compute Service, including each of the proprietary elements described in the preceding sentence, is the sole property of OctoML and/or its licensors (other than Customer) and is protected by copyright, trademark, patent, trade secret, and other intellectual property laws and unfair competition laws of the United States, foreign jurisdictions, and international conventions. Except for the express limited rights set forth in this Agreement, no right, title or interest in any OctoML Technology is granted to Customer. Further, Customer acknowledges that the Compute Service is offered as an on-line software-as-a-service offering and that Customer has no right to obtain a copy of the underlying computer code for the Compute Service, except for the Client Software in object code format. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to OctoML’s products and services to OctoML (“Feedback”). OctoML may freely use or exploit Feedback for any purpose without any obligation or compensation to Customer. Notwithstanding anything to the contrary herein, OctoML may collect Service Data and use Service Data to develop, improve, support, and operate its products and services during and after the Term of this Agreement. “Service Data” means query logs and other information about Customer’s use of the Compute Service. Service Data does not include Customer Data. This Section 12 does not give OctoML the right to identify Customer as the source of any Service Data other than in connection with providing the Compute Services to Customer (for example, in connection with Customer support or troubleshooting requests).
- Third-Party Sites and Materials.
The Compute Service may contain links to third-party sites for Customer’s convenience. OctoML is not responsible for the content of such third-party sites and does not make any representations or warranties regarding such sites or their content. Use of or reliance on such third-party sites is at Customer’s sole risk.
Open-Source Materials may be distributed with and utilized in connection with providing the Compute Services and certain results from performance of the Compute Service may contain Open-Source Materials. “Open-Source Materials” means software source code, documentation, and related source materials that are licensed to the public on an open-source basis by OctoML or one or more third-party contributors to such code, documentation, and materials, including modifications and other contributions thereto. Open-Source Materials are not licensed to you as part of the Compute Services. Instead, Customer’s and other licensees’ rights, duties, and responsibilities with respect to Open-Source Materials, including any rights to use, download, copy, modify, or redistribute Open Source Materials distributed together with the Compute Services, will be governed solely by the terms and conditions set forth in the applicable open source license agreement, or agreements, pursuant to which such Open Source Materials are licensed to the public and not by any rights granted by OctoML to Customer pursuant to this Agreement. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for such Open-Source Materials.
- Term; Termination and Modification of Agreement.
The “Term” of this Agreement commences upon Customer’s acceptance of this Agreement, as evidenced by Customer’s registering a User Account or otherwise accessing or using the Compute Service. The Term will continue until terminated by either Party in accordance with this Agreement.
Customer may terminate this Agreement at any time by canceling Customer’s User Account. OctoML may terminate this Agreement by canceling Customer’s User Account in the event that (i) OctoML reasonably believes that Customer has breached any of the terms of this Agreement or (ii) Customer’s User Account has remained inactive for one hundred eighty (180) days or more. OctoML may also terminate this Agreement at any time for any reason or no reason by canceling Customer’s User Account and refunding, on a pro-rata basis, any pre-paid fees paid by Customer for the Compute Service corresponding to the period of discontinuation. If OctoML cancels or suspends Customer’s User Account for any reason, Customer is prohibited from registering and creating a new User Account, even if Customer would be creating the new User Account on behalf of another entity. In addition to canceling Customer’s User Account and/or terminating this Agreement, OctoML reserves the right to take appropriate legal action, including, without limitation, pursuing civil and criminal remedies and seeking injunctive relief.
OctoML may make changes to this Agreement. The “Last Updated” date above indicates when the Agreement was last changed. If OctoML makes changes, OctoML may provide you with notice of such changes, such as by sending an email, providing a notice through the Compute Service, or updating the date at the top of this Agreement. Unless OctoML says otherwise in the notice, the amended Agreement will be effective immediately. Customer’s continued use of the Compute Service after OctoML provides notice of the updated Agreement will confirm Customer’s acceptance of the changes. If Customer does not agree to the amended Agreement, Customer must immediately stop using the Compute Service.
Upon any termination or expiration of the Term for any reason, the following will occur: (a) Customer will immediately discontinue all use of the Compute Service; (b) each Party will,, return or destroy the other Party’s Confidential Information; and (c) Customer will delete any Client Software, Documentation, and any Compute Service passwords or access codes. Customer acknowledges that following termination it shall have no further access to any Customer Data via the Compute Service. Sections 1-3 and 5-24 will survive any expiration or termination of this Agreement.
- Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, OctoML has adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that any content on the Compute Service infringe any copyright that you own or control, you may notify OctoML’s designated agent:
Designated Agent: Copyright Agent
Address: 1000 N Northlake Way
Seattle, WA 98103
Telephone Number: 206-659-5603
Email Address: email@example.com
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of a proper notification, OctoML may not process your notice.
- No Warranty. CUSTOMER’S USE OF THE COMPUTE SERVICE AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS) IS AT CUSTOMER’S SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPUTE SERVICE AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS) ARE PROVIDED BY OCTOML “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. OCTOML DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, OCTOML DOES NOT REPRESENT OR WARRANT THAT CUSTOMER’S USE OF THE COMPUTE SERVICE OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS) WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES OCTOML REPRESENT OR WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. WHILE OCTOML ATTEMPTS TO MAKE CUSTOMER’S USE OF THE COMPUTE SERVICE AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS) SAFE, OCTOML CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE COMPUTE SERVICE OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS) OR OCTOML SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COMPUTE SERVICE AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING MODEL OUTPUTS AND THE OPEN-SOURCE MATERIALS). OCTOML SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOML, INCLUDING ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE FOR THE BENEFIT OF OCTOML, THE OCTOML PARTIES, AND OCTOML’S RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS (OTHER THAN CUSTOMER), SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
- Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
EACH PARTY AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO OCTOML UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE OR (II) ONE THOUSAND DOLLARS (USD $1,000).
- The limitations set forth in this Section 17 will not limit or exclude liability arising (i) from Customer’s breach of Section 4 (Access to the Compute Service) or Section 7 (Prohibited Activities); (ii) under Section 9 (Customer Obligations); (iii) from a Party’s breach of its obligations in Section 11 (Confidential Information) (but excluding claims arising from loss or unauthorized disclosure of Customer Data); or (iv) any fees due or payable by Customer.
- Export Control. Customer is responsible for compliance with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Customer represents, warrants and covenants that it is not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
- No Publicity. Customer will not copy, imitate or otherwise use, in whole or in part, any trademarks or logos of OctoML, unless agreed to in writing by OctoML.
- General. The Parties are independent contractors and no employment, agency, or joint venture is created hereunder. OctoML may use the services of subcontractors in order to provide the Compute Service under this Agreement, provided that OctoML remains responsible for compliance of any such subcontractor with the terms of this Agreement. Waivers must be in writing and no waivers will be implied. This Agreement may not be assigned by Customer, and any purported assignment or amendment in violation of the foregoing will be void. OctoML may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of OctoML’s assets or voting securities. The word “including” is not intended to be exclusive and means “including, but not limited to.” The word “or” is not intended to be exclusive unless the context clearly requires otherwise. Words used in the singular, where the context so permits, will be deemed to include the plural and vice versa. The definitions of words in the singular herein will apply to such words when used in the plural where the context permits and vice versa. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof will be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Elements of the Compute Service are commercial computer software. If the user or licensee of the Compute Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Compute Service, or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Compute Service was developed fully at private expense. All other use is prohibited.
- Dispute Resolution; Mandatory Binding Arbitration. Please read this section of this Agreement carefully because it requires OctoML and Customer to arbitrate certain disputes and claims and limits the manner in which we can seek relief from each other. Arbitration precludes OctoML and Customer from suing in court or having a jury trial. OctoML and Customer agree that arbitration will be solely on an individual basis and not as a class arbitration, class action, or any other kind of representative proceeding. OctoML and Customer are each waiving the right to a jury trial.
- Claims This Section Applies To. The Section 21 applies to any dispute, controversy, or claim between OctoML and Customer, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either Party wishes to seek legal recourse for and that arises from or relates to this Agreement or the Compute Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it (each a “Claim” and collectively, the “Claims”).
- Informal Dispute Resolution. If Customer has a Claim against OctoML or if OctoML has a Claim against Customer, Customer and OctoML will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both Parties. Customer and OctoML will make a good-faith effort to negotiate the resolution of any Claim informally for at least 30 days, or such longer period as mutually agreed in writing (email suffices) by the Parties, (“Informal Resolution Period”) from the day either Party receives a written notice from the other Party (a “Claimant Notice”) in accordance with this Agreement.
Customer will send any Claimant Notice to OctoML by certified mail addressed to OctoML, Inc. 1000 N Northlake Way, Seattle, WA 98103 USA or by email to firstname.lastname@example.org. OctoML will send any Claimant Notice to Customer by certified mail or email using the contact information Customer has provided to OctoML. The Claimant Notice sent by either Party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is designed to allow the Party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. Customer and OctoML cannot proceed to arbitration before the end of the Informal Resolution Period. If Customer and OctoML file a Claim in court or proceed to arbitration without complying with the requirements in Section 21, including waiting until the conclusion of the Informal Resolution Period, the other Party reserves the right to seek relief from a court to enjoin the filing and seek damages from the Party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the Parties can engage in this informal dispute-resolution process.
Claims Subject to Binding Arbitration; Exceptions. Except for (1) individual Claims that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief); (2) any Claim seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party (“IP Claims”); (3) any claim for injunctive relief, all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 21(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
- Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by the American Arbitration Association (“AAA”), according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to AAA’s Commercial Arbitration Rules and Mediation Procedures in effect at the time the Claim arose (the “Rules”), as modified by this Agreement. If you are a “Consumer,” meaning that you only use the Compute Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between Customer and OctoML, as modified by this Agreement. The Rules are available at the AAA website www.adr.org.
This Agreement affects interstate commerce, and the enforceability of this Section 21 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to Customer or OctoML to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
- Arbitration Fees. Each Party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement. If you are a Consumer and such costs are determined by the arbitrator to be prohibitive compared to litigation costs, OctoML will pay as much of Customer’s arbitration costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).
- Arbitration Procedure and Location. Customer or OctoML may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with AAA. Instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. Customer will send any demand for arbitration to OctoML by certified mail addressed to OctoML, Inc. 1000 N Northlake Way, Seattle, WA 98103 USA or by email to email@example.com. OctoML will send any demand for arbitration to Customer by certified mail or email using the contact information Customer has provided to OctoML.
Arbitrations will be conducted in the English language by a single arbitrator. Customer and OctoML agree that the arbitrator will be bound by this Agreement.
For Claims in which the claimant seeks less than USD $25,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $25,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required, the hearing will take place in King County, Washington, unless the arbitrator determines that this would pose a hardship for Customer, in which case the location for any in-person hearing will be determined by the applicable Rules. The arbitrator (not a judge or jury) will resolve all Claims in arbitration. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the Parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
- One Year to Assert Claims. To the extent permitted by law, any Claim by Customer or OctoML against the other must be filed within one year after the Claim arose; otherwise, the Claim is permanently barred, which means that Customer and OctoML will no longer have the right to assert that Claim.
- Confidentiality. To the extent permitted by law, the arbitrator and the Parties will maintain the confidentiality of any proceedings, including, but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Claim. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary. If Customer is a Consumer, Customer and OctoML agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. Customer and OctoML agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
- Opting Out of Arbitration. Customer has the right to opt out of the requirement of binding arbitration within 30 days of the date Customer first accepted this Agreement by emailing firstname.lastname@example.org. To be effective, the opt-out notice must include Customer’s name, mailing address, and email address. The notice must also clearly indicate Customer’s intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 22.
- Severability. If any portion of this Section 21 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 21 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 21; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with Section 22, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 21 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 21 will be enforceable.
- Governing Law and Venue. Any dispute, controversy, or claim that arises from or relates to this Agreement or the Compute Services will be governed by and construed under the laws of the State of Washington except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any suit or proceeding arising out of or relating to this Agreement that is not subject to arbitration and cannot be heard in small claims court will be commenced exclusively in the state or federal courts in King County, Washington, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
- Modifying and Terminating the Compute Service. OctoML reserves the right to modify the Compute Service or to suspend or terminate providing all or part of the Compute Service at any time or to charge, modify, or waive any fees required to use the Compute Service. OctoML may provide you with notice in advance of the suspension or discontinuation of all or part of the Compute Service, such as by sending an email or providing a notice through the Compute Service. All modifications and additions to the Compute Service will be governed by the Agreement, unless otherwise expressly stated by OctoML in writing. Customer also has the right to stop using the Compute Service at any time. OctoML is not responsible for any loss or harm related to Customer’s inability to access or use the Compute Service.
By using the Compute Service, Customer consents to receiving electronic communications from OctoML. These electronic communications may include notices about applicable fees and charges related to the Compute Service and transactional or other information concerning or related to the Compute Service. These electronic communications are part of Customer’s relationship with OctoML and Customer receives them as part of Customer’s use of the Compute Service. Customer agrees that any notices, agreements, disclosures or other communications that OctoML send Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
Notices from Customer to OctoML or OctoML to Customer shall be in writing and may be sent via email or via Customer’s User Account. In any event, Customer can notify OctoML or send questions, complaints, or claims related to the Compute Service to OctoML by contacting OctoML using the contact information set forth below. Notices from OctoML to Customer will be sent to the email address or mailing address provided by Customer as part of Customer’s User Account.
Contact OctoML. In order to resolve a complaint regarding Customer’s User Account or the Compute Service or to receive further information from OctoML about the Compute Service, please contact OctoML at:
1000 N Northlake Way
Seattle, WA 98103 USA