Terms and Conditions

Evaluation Terms and Conditions

These Terms and Conditions (these “Terms”) govern your access to and use of the software as a service platform and related software and tools (“Licensed Product”) of BellwetherAI, Inc.(“Company”) as described on the ordering page where you (“you” or “Customer”) signed up to use the Licensed Product. Please read these Terms carefully before accessing or using the Licensed Product. By creating an account or otherwise using the Licensed Product, you acknowledge and agree to be bound by these Terms.

BY ACCESSING OR USING THE LICENSED PRODUCT, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE LICENSED PRODUCT.

1. Term and Termination.

These Terms and Customer’s order commence on the Effective Date and continue during the period identified on your ordering page, unless earlier terminated in accordance with this Section 1 (“Term”). Either party may terminate these Terms and the order effective upon thirty (30) days’ prior written notice if the other party materially breaches any representation, warranty, covenant, condition, or other obligation in the Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof from the terminating party. Company may also terminate these Terms and the order for convenience upon thirty (30) days’ prior written notice to Customer. Sections 1, 2.3, 2.4, and 3 through 8 (inclusive) herein will survive the expiration or termination of these Terms and the order.

2. Intellectual Property.

2.1 License to Customer; Restrictions.  Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to use the Licensed Product, and the documentation provided by Company for use with the Licensed Product, solely for Customer’s internal business purposes. Customer shall not, and shall not permit any third party to: (i) use the Licensed Product except as expressly permitted in this paragraph; (ii) decompile, disassemble, or reverse engineer the Licensed Product (unless this restriction is not permitted under applicable law); (iii) modify or create any derivative work of any part of the Licensed Product; (iv) permit any third parties to use the Licensed Product; (v) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Licensed Product, or use the Licensed Product for time-sharing or service bureau use; or (vi) remove any proprietary notices contained in the Licensed Product.

2.2 License to Company.  Customer hereby grants to Company a worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, modify and make derivative works of any data, information or other materials provided by or on behalf of Customer to Company (including through the Licensed Product) (“Customer Data”) in order to provide, maintain and improve the Licensed Product for Customer, and to train Company’s and its third party technology providers’ machine learning models. Company may access and use Customer’s systems in connection with Company’s performance of the Licensed Product. Company may collect, create or use data related to Customer’s use of the Licensed Product in order to improve Company’s products and services, to develop new products and services, and for its other business purposes (and such usage data will be owned by Company). Company may also use Customer Data in anonymized or aggregated form for any business purpose, including but not limited to product development, analytics, and marketing. Company shall not use identifiable Customer Data for marketing or publicity purposes without Customer’s prior written consent.

2.3 Company Property. As between Customer and Company, Company does and shall own all right, title and interest in and to the Licensed Product and Company’s data infrastructure, analytics platform, machine learning and natural language processing algorithms, software, technology, and other materials, and any changes, corrections, improvements, bug fixes, enhancements, updates and other modifications and derivative works thereof and thereto, and all intellectual property rights therein and thereto (collectively, the “Company Property”). As between the Parties, all intellectual property rights in the Company Property shall solely and exclusively vest in Company and, to the extent any such rights vest in Customer, shall be and hereby are irrevocably assigned by Customer to Company. Any and all software that Customer develops or creates with the Licensed Product to be used by Customer in combination with the Licensed Product is also Company Property, and such software shall be licensed to Customer as part of the Licensed Product in accordance with Section 2.1 above.  Nothing in these Terms will confer on Customer any right of ownership or interest in the Company Property. 

2.4 Feedback. During the course of Company providing the Licensed Product to Customer, Customer may submit comments or ideas about the Licensed Product (individually and collectively “Feedback”). Notwithstanding anything in these Terms to the contrary, Company is free to use Feedback for its business purposes, including to improve its technology, products and Licensed Product. All Feedback is Company’s sole and exclusive property and Confidential Information.

3. Fees and Payment.

Customer will pay Company the fees for the Licensed Product (if any) as set forth in the ordering page.  Customer will pay Company such fees within thirty (30) days from the date of Company’s invoice. Fees are non-refundable. Fees and other charges described in these Terms do not include sales, VAT, withholding, use, property, excise, service, or similar taxes (“Taxes”) now or hereafter levied, all of which shall be for Customer’s account. If Company is required to pay Taxes in connection with the Licensed Product to Customer, Customer shall reimburse Company for such amounts.  Customer hereby agrees to indemnify Company for any Taxes as a result of Licensed Product under these Terms and related interest, costs and penalties paid or payable by Company.

4. Representations and Warranties; Disclaimer.

Each party represents and warrants that: (a) it has full right, power, and authority to enter into these Terms and to perform its obligations and duties under these Terms; (b) its performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreements of such party or any judgment, order, or decree by which such party is bound; and (c) it has obtained and shall obtain all necessary rights, consents and licenses for the use of all data and materials provided by or on behalf of such party to the other party as contemplated by these Terms. THE LICENSED PRODUCT IS PROVIDED “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES MAY HAVE OTHER STATUTORY RIGHTS. 

5. Limitation of Liability.

EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION), OR ANY BREACH THEREOF, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION (WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER FORM OF ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO COMPANY UNDER THE ORDER.

6. Confidentiality.

“Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. The Company Property is deemed Company’s Confidential Information. Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was rightfully obtained by recipient from a third party. The recipient agrees not to disclose the discloser’s Confidential Information except to its affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and to fulfill its obligations under these Terms, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information. Upon request of a party or upon termination or expiration of these Terms, each party shall promptly deliver to the other party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) of such other party that are in its possession or control.

7. Indemnification.

Each party will indemnify and defend the other party from and against any and all third-party claims, actions, and proceedings, and all liabilities, damages, costs, fees and expenses related thereto (including attorneys’ fees, expert witness fees, and court costs) to the extent arising out of any actual or alleged (a) violation by the indemnifying party of any applicable laws, rules, regulations and orders, or (b) infringement, violation or misappropriation by the indemnifying party upon the intellectual property rights or other proprietary or other rights of any third party. The indemnified party shall give the indemnifying party prompt written notice of any action, claim or threat of suit, and shall give the indemnifying party the opportunity to take over, settle or defend such action, claim or suit through counsel of the indemnifying party’s choice and under the indemnifying party’s sole direction and expense; provided that the indemnifying party shall not settle any such claim in a manner involving any action on the part of the indemnified party or the payment of any money by the indemnified party without the indemnified party’s prior written consent; and, provided, further, that the indemnified party may participate in the defense of any claim by counsel of its own choosing, at its cost and expense. The indemnified party shall cooperate fully with the indemnifying party in connection with such action, claim or suit at the indemnifying party’s expense.

8. Miscellaneous.

Company may use Customer’s name and logo in its marketing materials, website, and customer lists, provided that any use of Customer’s logo will be in accordance with Customer’s brand guidelines and with Customer’s prior written approval. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. Notwithstanding anything to the contrary, these Terms will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind. Neither party may assign these Terms without the prior written consent of the other party and any attempt to do so will be void, except that either party without the other party’s consent may assign these Terms to its affiliates or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities or assets of such party. Any notice or consent under these Terms will be in writing to the address provided by the receiving party. No provision of these Terms will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving that provision and signed by a duly authorized officer of the waiving party. If any provision of these Terms is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect. In these Terms, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation.  Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes. These Terms will be deemed to have been made in, and will be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions. Any suit or proceeding arising out of or relating to these Terms will be commenced in federal or state courts in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of those courts. Any amendments will be effective only if made in writing signed by a representative of the respective Parties.  Both Parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the Parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms. These Terms may be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Agreement. Signatures sent by electronic means (facsimile, scanned and sent via e-mail, or signed by electronic signature service where legally permitted) shall be deemed original signatures.