METARANX API AND SOFTWARE LICENSE AND SERVICES AGREEMENT
METARANX PROVIDES ITS API, SOFTWARE, PLATFORM AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ANY TERMS AND CONDITIONS INCORPORATED BY REFERENCE, ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY [CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX/OTHER MEANS PROVIDED FOR ACCEPTANCE] YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, METARANX WILL NOT AND DOES NOT PROVIDE A LICENSE TO LICENSEE AND YOU MUST NOT USE THE API, SOFTWARE, SERVICES AND/OR API DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
- Definitions. In addition to any other terms defined in this Agreement, the following terms will have the following meanings:
“Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other Affiliates of that entity (or a combination thereof). For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
“Agreement” means this agreement, as may be amended from time to time in accordance with the terms of this Agreement;
“Documentation” means any documentation made available to Licensee by Metaranx from time to time, including, without limitation, through the Site in connection with the use of the Platform.
“Application” means any artificial intelligence application, model, application programming interface, or any component thereof, built by any user of the Services, including Licensee through Licensee’s use of the Services.
“Claim” has the meaning set out in Section 14.1;
“Confidential Information” means all information of a confidential or proprietary nature in any medium or format, whether or not marked or described as “confidential”, of or which relates to a Party or any of its Affiliates (collectively, the “Disclosing Party”) provided to the other Party or to any of its Affiliates (collectively, the “Receiving Party”) in the course of the dealings relating to this Agreement including, without limitation, technical, financial or business information, Personal Data, data, ideas, concepts or know-how. Confidential Information shall not include any information which: (a) is or becomes publicly known through no wrongful act or failure to act on the part of the Receiving Party; (b) is rightfully obtained by the Receiving Party, free from any obligation of confidence, from a third party which has represented to the Receiving Party that such source is entitled to disclose that information; (c) is known to the Receiving Party prior to such information having been furnished to the Receiving Party in the course of the dealings relating to this Agreement and was not subject to any confidentiality obligation on the part of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information;
“Effective Date” means the date of acceptance of this Agreement by Licensee.
“Fees” has the meaning set out in Section 10.1;
“Intellectual Property” means anything that is or may be protected by any Intellectual Property Right such as, but not limited to, works, performances, discoveries, inventions, trade-marks (including trade names and service marks), domain names, industrial designs, trade secrets, data, tools, templates, technology (including software in executable code and source code format), documents or any other information, data or materials and the expression of the foregoing, Confidential Information as applicable, mask work and integrated circuit topographies;
“Intellectual Property Rights” means any and all current and future worldwide intellectual and industrial property rights including, without limitation, all patent rights, copyrights, trade-mark rights, and rights to trade secrets and know-how;
“License” has the meaning set out in Section 3.1.
“Licensee Data” has the meaning set out in Section 2.3;
“Metaranx Marks” means Metaranx’s proprietary trade-marks, trade names, branding, or logos made available for use in connection with the Platform pursuant to this Agreement.
“Metaranx Terms of Service” means the Terms of Service applicable to use of the Platform, available online:https://www.metaranx.com/legal/terms-of-service or at any successor address.
“Personal Information” means information contained in the Licensee Data which relates to an identified or identifiable individual;
“Platform” means the “software as a service” services platform and artificial intelligence application marketplace developed and owned by Metaranx, designed to facilitate the development, training, testing, support, use, exchange and integration of Applications.
“Services” has means the services set out in this Agreement as further described in Schedule “A” and includes provision of the Platform and the License granted hereunder.
“Term” has the meaning set out in Section 7.1;
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, templates, content, specifications, products, equipment or components of, relating to, or uploaded to the Platform, that are not proprietary to Metaranx;
“Updates” means any updates, bug fixes, patches, or other error corrections to the Services that Metaranx generally makes available free of charge to all licensees of the Services.
- Scope of Services. Subject to and conditional on compliance with the terms and conditions of this Agreement by Licensee, during the Term, Metaranx shall use commercially reasonable efforts to provide to Licensee the Services in accordance with the terms and conditions hereof.
- Affiliates. Licensee acknowledges and agrees that Metaranx has made the Services available exclusively to Licensee and they shall not apply to any Licensee Affiliates except as otherwise expressly agreed to in writing by Metaranx, and provided that such Licensee Affiliate agrees in writing to be bound by the terms and conditions set forth in this Agreement as though it were Licensee hereunder. Licensee acknowledges and agrees that in such circumstance, Licensee shall be liable for its Affiliate’s acts, failures to act, default or negligence including being liable for the payment of all amounts due under a purchase order issued by a Licensee Affiliate.
- Licensee Data. Metaranx may retain and use all data, files, documentation or any other information that Licensee may provide in connection with the Services or APIs (“Licensee Data”) for the purpose of developing and improving its services offerings.
- LICENSE AND RESTRICTIONS
- License Grant. Subject to Section 3.2 and conditional on Licensee’s payment of the Fees and compliance with and performance of all other terms and conditions of this Agreement, Metaranx hereby grants Licensee a limited, revocable, non-exclusive, non-transferable except as set forth in Section 16.1, non-sublicenseable license during the Term to use the Services in order to develop, train, test, support, use, exchange and integrate one or more Applications (the “License”). Licensee acknowledges and agrees that it may use the Services only as expressly permitted in this Section 3. All other rights and interests in and to the Services expressly reserved by Metaranx.
- Reservation of Rights. Metaranx reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title or interest in or to the Services.
- Restrictions on Use. Licensee shall not, and shall not permit any other person or entity to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Licensee shall not, except as this Agreement expressly permits:
- copy, modify or create derivative works or improvements of the Services;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of the Services to any person or entity for any reason;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, or any part thereof;
- access or use the Services other than through the use of Licensee’s own then-valid access credentials;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Metaranx’s systems or Metaranx’s provision of services to any third party, in whole or in part;
- remove, delete, alter or obscure any trade-marks, specifications, Documentation, warranties or disclaimers, or any copyright, trade-mark, patent or other Intellectual Property Rights or proprietary rights notices from any of the Services, including any copy thereof;
- access or use the Services any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other right of any third party, or that violates any applicable Law;
- access or use all or any part of the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Metaranx’s detriment or commercial disadvantage;
- use the Services to disrupt, interfere with, or attempt to gain unauthorized access to services, servers, or networks connected to or which can be accessed via any API;
- use any Application in any way that threatens the integrity, performance or reliability thereof or of any Services, including performance or stress testing, or in any manner that works around any technical limitations in any Application;
- request or seek to obtain from any Application any information outside any permissions granted by Metaranx or the creator of the relevant Application;
- resell (e.g. for a fee, or any other commercial benefit) or otherwise monetize any rights granted hereunder, except as permitted by this Agreement;
- design or permit any Applications to disable, override, or otherwise interfere with any Metaranx-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
- attempt to cloak or conceal Licensee’s identity or the identity of Applications when requesting authorization to use the Services;
- falsify or alter any unique referral identifier in, or assigned to any Application, or otherwise obscure or alter the source of queries coming from any Application; or
- otherwise access or use the Services beyond the scope of the authorization granted under Section 3.
- License to Use Licensee Data. Without limiting Section 2.3 (Licensee Data), for the Term of this Agreement, Licensee hereby grants to Metaranx a royalty-free, non-exclusive, non-transferrable license to use, copy, store and display all Licensee Data for the purpose of enabling Metaranx to perform its obligations under this Agreement. Metaranx shall only use the Licensee Data in accordance with the license granted hereunder and only for the purpose by which it was made available under this Agreement.
- customer obligations
- Licensee Cooperation. Licensee shall at all times during the Term provide all cooperation and assistance as Metaranx may reasonably request to enable Metaranx to exercise its rights and perform its obligations under and in connection with this Agreement.
- Effect of Licensee Failure or Delay. Metaranx is not responsible or liable for any delay or failure of performance caused in whole or in part by Licensee’s delay in performing, or failure to perform, any of its obligations under this Agreement.
- Licensee Use of Services. Licensee is responsible and liable for all uses of the Platform and any Application resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Licensee shall take reasonable efforts to make all of Licensee’s end users aware of this Agreement’s provisions as applicable to such end user’s use of the Application, and shall cause end users to comply with such provisions.
- Safeguards. Licensee will use commercially reasonable efforts to safeguard Application(s) (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
- Metaranx Marks. All use by Licensee of Metaranx Marks, if any, will comply with any usage guidelines that Metaranx may specify from time to time. Licensee agrees that Licensee’s use of the Metaranx Marks in connection with this Agreement will not create any right, title, or interest in or to the Metaranx Marks in favour of Licensee and all goodwill associated with the use of the Metaranx Marks will inure to the benefit of Metaranx.
- Data backup
- Data Backup/Responsibility. Metaranx has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Licensee Data. Licensee is solely responsible for maintaining backups of Licensee Data.
- PROHIBITED DATA
- Prohibited Data. Licensee acknowledges that the Services are not designed with security and access management for processing the following categories of information: (a) Personal Information; (b) illegal materials; and/or (c) such prohibited material and other information as are specified in the Metaranx Terms of Service from time to time (each of the foregoing, “Prohibited Data”). Licensee shall not, and shall not permit any other entity or person to, provide any Prohibited Data to, or process any Prohibited Data through, the Services or any related Metaranx systems or personnel. Licensee is solely responsible for reviewing all Licensee Data and shall ensure that no Licensee Data constitutes or contains any Prohibited Data: https://www.metaranx.com/legal/terms-of-service.
- Licensee Control and Responsibility. Licensee has and will retain sole responsibility for: (a) all Licensee Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Licensee in connection with the Services; (c) Licensee hardware and software systems; (d) the security and use of access credentials of Licensee; and (e) all access to and use of the API directly or indirectly by Licensee including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- Access and Security. Licensee shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to, or use of, the Platform and any Application; and (b) control the content and use of Licensee Data, including the uploading or other provision of Customer Data for Processing by the Services.
- Term/Renewal. This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated in accordance with the terms of this Agreement.
- Termination by Licensee. Licensee may terminate this Agreement upon 30 days’ prior written notice to Metaranx.
- Insolvency. Metaranx may terminate this Agreement, upon written notice to Licensee, if Licensee is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without Licensee’s consent, if Licensee assigns its property to its creditors or performs any other act of bankruptcy or Licensee becomes insolvent and cannot pay its debts when they are due.
- Material Breach. In addition to any other rights and remedies available to it, Metaranx may immediately terminate this Agreement in the event of material breach Licensee of its obligations hereunder, including any of the representations, warranties and covenants hereunder, provided that such breach is not cured within thirty (30) days of notification by Metaranx of such breach. Notwithstanding the foregoing and without limiting any other termination rights, Metaranx may terminate this Agreement immediately upon notice to Licensee in event of any breach by Licensee of Sections 3.3 (Restrictions on Use), 6.1 (Prohibited Data), 10.1 (Fees), Section 12 (Confidentiality), 13.2 (Third Party Materials) and 13.3 (Applications).
- Effect of Termination. Upon any termination of this Agreement: (i) the rights granted by one Party to the other will immediately cease; (ii) Metaranx shall issue Licensee an invoice for all accrued Fees which shall be immediately due upon Licensee’s receipt of the final invoice; (iii) Licensee will delete or return any software provided by Metaranx in connection with the Services; and (iv) within seven (7) days, except as may be required by applicable Law or as otherwise provided herein, each Party will return or destroy any Confidential Information of the other Party which, in the case of the Licensee, will include the destruction of all copies of Applications and any other materials obtained from or through the Platform for which it does not have an ongoing right to use in accordance with the terms applicable to such Application or material.
- Changes. Licensee acknowledges and agrees that Metaranx may, at any time, make changes to the nature and scope of the Services (a “Change”) and nothing in this Agreement will be construed to restrict Metaranx from making any Changes, provided that in no event will any Change result in a material adverse effect on the utility of the Platform for Licensee without prior notice of such Change.
- Fees and Payment. In the event that Licensee makes any Application(s) available to other users on the Platform, Metaranx shall remit to Licensee all amounts paid by other users in respect of the use of such Applications, less the fees set forth in Schedule A (the “Fees”), in accordance with the terms of Schedule A and this Section 10.
- Taxes. Each Party shall be liable for its own taxes based upon net income, capital or gross receipts. All prices and license fees are exclusive of all applicable taxes such as national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees. For certainty, Licensee agrees to pay any local, state, provincial and federal sales and value-added taxes and other applicable taxes and duties eligible on the transaction contemplated by this Agreement, exclusive of taxes based on the net income of Metaranx. Should Licensee have any certificates which provide that no sales or other taxes apply to a specific transaction, then this certificate must be provided by Licensee to Metaranx in advance of using the service.
- REPRESENTATIONS, WARRANTIES AND COVENANTS; Disclaimer
- Mutual. Each Party represents and warrants that (i) the execution and delivery of this Agreement will not breach any contractual duty it has to a third party; (ii) it has and will have full and sufficient right, title or authority to enter into and perform its obligations under this Agreement; and (iii) the performance of any obligations or exercise of any rights under this Agreement will be in compliance with all applicable laws.
- By Licensee. Licensee represents and warrants to and covenants with Metaranx that:
- Licensee will comply at all times with the license grant set out in Section 3; and
- Licensee’s use of the Services will at all times comply with all applicable Laws and the terms of the License; and
- Licensee has obtained and will maintain in good standing all required consents and approvals required for the use by Metaranx of Licensee Data in accordance with Section 3.4.
- By Metaranx. Metaranx represents and warrants to and covenants with Licensee that Metaranx will deliver the Services to Licensee with at least the same level of availability, reliability, accuracy and security that Metaranx makes available to other of its customers and will, in any event, use commercially reasonable efforts to minimize and periods of unavailability.
- Breach. The failure of any of the above representations, warranties and covenants to be accurate at any time during the Term shall constitute a material breach of this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, METARANX MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY NATURE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RESPECT OF THE SERVICES AND ANY APPLICATIONS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS RESPECTING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ARISING BY STATUTE, OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO REPRESENTATION, WARRANTY OR CONDITION IS MADE BY OR OTHERWISE PROVIDED BY METARANX WITH RESPECT TO LICENSEE’S RECEIPT OR USE OF THE SERVICES OR APPLICATION, INCLUDING THAT THE LICENSEE’S USE THEREOF WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. LICENSEE ACKNOWLEDGES AND AGREES THAT ITS RECEIPT OF THE SERVICES AND USE OF THE APPLICATIONS IS AT LICENSEE’S OWN RISK AND THAT THE APPLICATIONS ARE PROVIDED ON AN “AS IS” BASIS “WITH ALL FACULTS” AND “AS AVAILABLE”.
- Protection of Confidential Information. Each Party agrees to use the same means it uses to protect its own Confidential Information of a like nature, but in any event, not less than reasonable means, taking into consideration the sensitivity and nature of the Confidential Information in question, to prevent the disclosure of Disclosing Party’s Confidential Information to third parties. In its capacity as Receiving Party, each Party shall:
- hold all Confidential Information of Disclosing Party in confidence;
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as permitted under Section 12.2 or to the extent Disclosing Party gives prior written consent, not disclose Confidential Information or the provisions of this Agreement except to its directors, officers, employees or agents who have a need to know such information for purposes of and as permitted by this Agreement; and
- promptly notify Disclosing Party in writing of any unpermitted disclosure or unpermitted use of any Confidential Information of Disclosing Party of which Receiving Party becomes aware.
- Compelled Disclosures. Receiving Party may disclose Confidential Information of Disclosing Party if and solely to the extent required by applicable laws or regulations, or judicial or governmental orders (“Laws”), provided that Receiving Party must first give Disclosing Party written notice of such compelled disclosure (except where such notice is prohibited by applicable Laws) to provide Disclosing Party an opportunity to seek a protective order or other remedy.
- Remedies. Receiving Party agrees that Disclosing Party may be irreparably injured by a breach of this Agreement and that Disclosing Party may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any action instituted in any court having subject matter jurisdiction, in addition to any other remedy to which Disclosing Party may be entitled at law or in equity in the event of any breach of the provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
- PROPRIETARY RIGHTS
- Ownership. Licensee acknowledges and agrees that this is a contract for services and not for goods or products, and that subject to Sections 13.2 and 13.3, Metaranx retains exclusive ownership of all Intellectual Property Rights in and to any and all Intellectual Property used to provide the Services or any parts thereof. For greater certainty, Metaranx’s ownership rights extend to any and all improvements to the Services (or any parts thereof) developed in the course of its relationship with Licensee, whether based on Licensee feedback, input, Licensee Data or otherwise.
- Third Party Materials. Both Parties acknowledge and agree that all Third Party Materials uploaded to or made available on the Site are the exclusive property of the party specified in the license to such Third Party Materials. Both Parties further acknowledge and agree that Licensee is solely and exclusively responsible for reviewing all relevant licenses to any Third Party Materials used or accessed by Licensee in connection with Licensee’s use of the Services, and for ensuring Licensee’s use of Third Party Materials complies with and does not violate any third party’s proprietary rights in such materials. For greater certainty, this Section 13.2 applies to any and all Third Party Materials accessed or used by the Licensee in connection with the Services, including to develop, train, test, support, use, exchange or integrate Applications.
- Applications. Both Parties acknowledge and agree that all Applications created by the Licensee through Licensee’s use of the Services are the exclusive property of the Licensee.
- Intellectual Property. Subject to Section 2.3, the Parties acknowledge and agree that nothing in this Agreement shall be construed to give either Party any right, title, or interest in the Intellectual Property of the other Party.
- INDEMNITY and Limitation of Liability
- By Licensee. Licensee agrees to defend, fully indemnify and hold harmless Metaranx from and against any and all claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever (each a “Claim”), for damages, losses, costs and/or expenses (including legal fees and disbursements) (“Losses”) arising out of or relating to:
- use of the Services, subject to Section 14.2;
- any bodily injury, sickness or death to any person using the Services or any resulting Applications;
- any gross negligence or criminal, fraudulent or other willful misconduct on the part of Licensee in connection with this Agreement; and
- work done by Metaranx at Licensee’s request including, without limitation, provision of Services; and
- all of Licensee’s activities pursuant to this Agreement including, for certainty, any breach by Licensee of Section 6 (Prohibited Data).
- By Metaranx.
- Metaranx shall defend or settle any Claim brought against Licensee arising out of or relating to any Claim that Licensee’s use of the Services infringes a third party’s Intellectual Property Rights (an “IP Claim”). Metaranx will fully indemnify and hold harmless Licensee from and against any Losses that: (i) a court finally awards as a result of any IP Claim; or (ii) are agreed to by Metaranx in any settlement arising from any IP Claim, in each case subject to this Section 14.
- Notwithstanding anything herein to the contrary, Metaranx will have no obligation or liability to Licensee under this Section 14.2 if: (i) the IP Claim is based upon, arises out of or is related to (A) the combination of any of the Services with any other software, hardware or products not provided by Metaranx; (B) the use of the Services in a manner that contravenes any of the provisions of this Agreement; (C) the use of the Services for other than their intended purposes; (D) modifications, improvements and derivative works of Metaranx created by or on behalf of Licensee; (ii) Licensee is in material breach of this Agreement or has failed to pay amounts due hereunder as set forth in Section 10.1; or (iii) Licensee fails to notify Metaranx of the Claim for which Licensee seeks indemnification hereunder within ten (10) days of becoming aware of the IP Claim.
- In the event that the Services, or any part thereof, become the subject of an IP Claim, Metaranx may, at Metaranx’s option and expense, (i) procure for Licensee the right to continue using such Services; (ii) replace or modify the Services with a non-infringing version of substantially equivalent function and performance; or (iii) terminate this Agreement. The obligations of Metaranx set forth in this Section 14.2 shall constitute the sole and exclusive remedy of Licensee with respect to any IP Claim.
- Cooperation. In connection with any Claim or action described in this Section 14, the Party seeking indemnification will (i) give the indemnifying Party prompt written notice of such Claim or action; (ii) cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of such Claim or action, and (iii) permit the indemnifying Party to control the defense and settlement of such Claim or action; provided that the indemnifying Party will not under any circumstances (a) settle such Claim or action without the indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed), or (b) make an admission of liability on behalf of the indemnified Party without the indemnified Party’s prior written consent and further provided that the indemnified Party shall be entitled to participate (at its expense) in the defense and settlement of such Claim or action.
- Limitation of Liability.
- SUBJECT TO SECTION 14.4(c), NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF REVENUE OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
- SUBJECT TO SECTION 14.4(c), NEITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) WILL IN ANY EVENT EXCEED THE AMOUNT PAID BY LICENSEE PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.
- THE LIMITATIONS AND EXCLUSIONS OF LIABILITY PROVIDED FOR IN SECTIONS 14.4(a) AND 14.4(b) WILL NOT APPLY TO CLAIMS ARISING FROM ANY BREACH OF (I) SECTION 3.2 (RESTRICTIONS ON USE); (II) SECTION 10.1 (FEES); (III) Section 12 (CONFIDENTIALITY); OR (IV) Section 13 (PROPRIETARY RIGHTS).
- DISPUTE RESOLUTION
- Injunctive Relief. Notwithstanding the provisions of this Section 15, each Party shall retain the right and nothing shall prevent either Party from seeking immediate injunctive relief if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing the dispute resolution processes described herein, including, without limitation, in respect of a Claim by a Party based on a breach of the confidentiality obligations in this Agreement.
- Arbitration. Except for matters that are expressly excluded from arbitration hereunder, any controversy, dispute, disagreement or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the ADR Institute of Canada. The following provisions shall govern any arbitration hereunder:
- the legal seat of arbitration shall be Toronto, Ontario.
- there shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the ADR Institute of Canada in accordance with the ADRIC Arbitration Rules.
- the Parties shall equally share the fees of the arbitrator and the facility fees.
- the Parties shall each bear their own legal costs and expenses of the arbitration.
- any decision of the arbitrator shall be final and binding on the Parties and their respective successors and assigns, and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.
- GENERAL PROVISIONS
- Assignment. This Agreement may not be assigned by either Party in whole or in part, without the other Party’s prior written consent, provided that Metaranx may assign this Agreement to a third party in connection with a sale of all or substantially all of its business.
- Relationship of Parties. In all matters relating to this Agreement, Metaranx and Licensee are independent contractors of each other and nothing will be construed to create any association, partnership, joint venture, or relationship of agency or employment between Metaranx and Licensee.
- Publicity. Licensee authorizes Metaranx to (i) include Licensee in any client or subscriber list; and (ii) use Licensee’s name and/or trademarks for marketing and publicity on its website, in marketing materials and/or in press releases.
- Excusable Delays. Should Metaranx incur any delay in the provision of the Services resulting from any errors, defects or other problems contained in the information, materials and/or instructions provided to it by Licensee, Metaranx shall be excused from performance during the period of such delay and Licensee shall remain liable for any Fees incurred during such delay.
- Force Majeure. Neither Party shall be liable to the other for a failure or delay in the performance of any obligation under this Agreement if such failure or delay is caused by an event beyond a Party’s control, including, but not limited to, any fire, power failure, pandemic and/or public health emergency, act of God, labour dispute or government measure or other cause beyond such Party’s reasonable control (a “Force Majeure Event”), provided that such Party gives prompt written notice of the Force Majeure Event to the other Party and resumes performance of its obligations as soon as possible. Either Party may terminate this Agreement without penalty if such delay due to a Force Majeure Event continues for a period of ninety (90) days without cure.
- Survival. The following sections shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Section 2.3 (Licensee Data); Section 3.4 (License to Use Licensee Data); Section 12 (Confidentiality); Section 13 (Proprietary Rights); Section 14 (Indemnity and Limitation of Liability); Section 15 (Dispute Resolution); and Section 16.7 (Governing Law). For greater certainty, Licensee’s obligations in respect of any Fees owing shall also survive, whether or not such Fees have been invoiced by Metaranx.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario for any legal proceedings arising out of this Agreement or the performance of the obligations hereunder.
- Notices. All notices under the terms of this Agreement shall be given in writing and sent by email to: (a) in the case of Licensee, the email address provided upon registration; and (b) in the case of Metaranx, to the attention of Samantha Lloyd at firstname.lastname@example.org, or such other address as either Party may notify the other in writing from time to time. All notices shall be presumed to have been received when they are received.
- Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.
- Waiver. A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.
- Remedies Cumulative. No single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise of any other right or remedy in this Agreement or as provided at law or in equity. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
- Number and Gender. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.
- Amendment. This Agreement may only be amended by written agreement duly executed by authorized representatives of the Parties.
- Counterparts and electronically transmitted. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted electronically by facsimile or email is to be treated as an original and shall have the same binding effect as an original signature on an original document.
- Non-Solicitation. During the Term of this Agreement and continuing for a period of twelve (12) months after its expiry or termination, the Parties shall not directly or indirectly, solicit or attempt to solicit for employment, hire, employ, contract or recruit for the purposes of engagement, any person who is or was within the previous twelve (12) month period an employee of the other Party.
- Entire Agreement. This Agreement and the Schedule attached hereto shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall replace all prior promises or understandings, oral or written.
1. Marketplace Services
- Marketplace Services Provided. Metaranx shall provide the following software and services in accordance with the terms and conditions of the body of the Agreement and any additional terms and conditions set out in this Schedule “A” (together, the “Services”) access to and use of the Platform including the ability to utilize Applications made available by other users of the Platform.
- Particulars of Marketplace Services.
- The Platform. The Platform provides Licensee with access to various AI models, data, assets and templates that Licensee may use to develop, train, test and deploy Applications. Licenses to any materials available on the Platform that are not proprietary to Metaranx are accessible to Licensee in the list of particulars attached to such materials, which become visible in drop-down form when such materials are selected by Licensee.
- The Marketplace. The Marketplace gives Licensee access to a community forum that aggregates existing open source AI-related components and Third Party Materials. Licensee may share or sell their Applications or Third Party Materials on the Marketplace or purchase such materials from other customers. Licensee may also integrate with Applications or make Licensee’s own Applications available for others to integrate with on the Marketplace.
- Fee Schedule
- License Fees. In consideration of Metaranx granting Licensee the License to provide access to its Applications, Licensee will pay the fees as set out in the Platform.
- Fee Increases. Metaranx may increase Fees for the Services, and this Schedule A will be deemed amended accordingly.