1. Customer Agreement
This CUSTOMER AGREEMENT and any Order referring to it (collectively, the “Agreement”) describes the terms and conditions that apply to your (“Customer”) use of OrcaAI Corporation’s (“Company”) software engineering AI platform (the “Solution”). As used herein, an “Order” shall mean any order form, order confirmation, or other written acknowledgement (e.g., an email notice or receipt of purchase) of an order placed for the Solution and any related offerings. By accessing or using the Solution, or accepting this Agreement by checking the box, Customer agrees that: (1) it has read, and it understands and agrees to be bound by this Agreement; (2) it is not barred from using the Solution under the laws of the United States or any other applicable jurisdiction; and (3) it has the authority to enter into this Agreement personally, or if Customer is accessing or using the Solution on behalf of an entity, it has authority to enter into this Agreement on behalf of such entity.
2. The protection of Customer’s intellectual property rights is paramount to Company:
We will not disclose your proprietary business processes and associated data (“Customer Business Process Data”) to any other customer, and we do not train our AI models on Customer Business Process Data, so the Solution will never allow your Customer Business Process Data to in any way inform another customer’s customer business process data.
3. ACCESS.
3.1 Access to Solution. Subject to the terms and conditions of this Agreement and any applicable Order, Company will provide Customer, and employees, agents and independent contractors engaged by Customer who are authorized to access the Solution (“Authorized Users”) on Customer’s behalf, with access to the Solution during the Term. Customer’s access is a non-exclusive, non-transferable, limited use of the Solution: (a) during the Evaluation Term for Customer’s evaluation purposes and internal use only, and (b) during the Production Term (including any Renewal Term) for Customer’s internal business purposes only, subject to Customer’s payment of all Fees set forth in an Order. In connection with accessing and using the Solution, Customer will share access to its Customer Business Process Data to the Solution. Company will provide to Customer the access codes and authentication keys necessary to enable Customer and its Authorized Users to access the Solution. The unique usernames and passwords cannot be shared or used by more than one individual Authorized User and Customer is responsible for all activities that occur under Authorized User accounts.
3.2 Support. Subject to the terms of this Agreement and any Order, Company shall use commercially reasonable efforts designed to maintain the availability of the Solution.
3.3 Customer Business Process Data. Customer hereby grants Company the right to access and use your Customer Business Process Data solely for the purposes of providing the Solution as provided herein. As between the parties, Customer owns all right, title and interest in and to your Customer Business Process Data, and any process suggestions, exception fixes, architecture suggestions and other outputs generated by the Solution that are specific to your Customer Business Process Data and that are selected by Customer (“Suggestions”), and all Intellectual Property Rights therein. Suggestions do not include pre-existing materials or outputs of the Solution which are not specific to Customer, such as process explanations or other guidance, but Customer is entitled to use such outputs or materials in connection with the Suggestions. Company represents and warrants that the Suggestions do not infringe upon or misappropriate the Intellectual Property Rights of a third party. Notwithstanding the foregoing, given the nature of machine learning, Customer acknowledges that portions of Suggestions may not be unique across users and the Solution may generate the same or similar output for another customer under similar terms.
3.4 Protection of Customer Business Process Data. Company will treat your Customer Business Process Data as confidential to Customer and will protect your Customer Business Process Data from unauthorized use, access, or disclosure in the same manner that Company protects its own confidential information of a similar nature and in no event with less than a reasonable degree of care.
3.5 Restricted Use of Customer Business Process Data. Our Solution is powered by both generative AI models, which are models that generate Suggestions based on studying existing business processes and its structure (“Generative Models”) and retrieval and preference machine learning models, which are models which help us to improve the quality and applicability of the Suggestions that are shown to customers (“Preference Models”, and together with the Generative Models, the “Models”). Company will not use Customer Business Process Data or Suggestions as training data to train or finetune its general Generative Models or Preference Models. However, Company may collect and use performance and usage data (“Usage Data”) generated or collected through or in connection with Customer’s use of the Solution, to evaluate, train and improve our Preference Models; provided that such Usage Data shall not include any Customer Business Process Data or Suggestions.
3.6 Restrictions on Solution. Customer shall not, and shall not permit its Authorized Users or any other third party to: (a) modify or create any derivative works based on the Solution or any materials provided by the Company in connection with the Solution or any portion thereof; (b) reproduce the Solution; (c) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Solution or provide access to the Solution to third parties on a service bureau basis or otherwise; (d) use the Solution other than as provided herein; or (e) upload anything to the Solution that violates any third party intellectual property or proprietary rights, or that is unlawful.
3.7 Ownership. Company retains all right, title and interest in and to the Solution, its underlying Models and algorithms, and any materials describing the Solution (“Documentation”), including any improvements, enhancements and modifications made therein, and all worldwide trade secrets, patents, copyrights, trademarks, service marks, moral rights and other intellectual property and proprietary rights, and all applicable applications and registrations (“Intellectual Property Rights”) therein. Customer acknowledges that this Agreement is not a sale and does not transfer to Customer title or ownership of the Solution, the Models or Documentation, but only provides for limited use as contemplated herein. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO COMPANY.
4. FEEDBACK.
In the course of using the Solution, Customer will provide to Company feedback regarding the use, operation, and functionality of the Solution and the Suggestions, including but not limited to, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features (“Feedback”). Customer acknowledges that Company may use and incorporate the Feedback into the Solution and in connection with its business, products, models and services without restriction or obligation for compensation to Customer.
5. PAYMENT.
Customer’s access to the Solution during the Evaluation Term is free of charge. During the Production Term (including any Renewal Term), Customer will pay to Company the fees set forth on any applicable Order for access to the Solution and related services (“Fees”). The Fees are non-refundable and are not eligible for set off. Unless otherwise stated on an Order, Customer shall pay the Fees in advance, within thirty (30) days of receipt of an invoice. Each party shall bear its own expenses in connection with the performance of this Agreement. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Solution (excluding taxes based solely on Company’s income). If Customer is delinquent in the payment of any undisputed amounts due to Company, Company may suspend its provision of the Solution upon thirty (30) days’ advance written notice to Customer.
6. TERM AND TERMINATION.
6.1 Term. This Agreement will commence when accepted by Customer (“Effective Date”) and will remain in full force and effect for a period of three (3) months (the “Evaluation Term”). If the parties execute an Order to permit Customer to use the Solution in production, then this Agreement will automatically renew and begin the production term (“Production Term”) for the duration set forth on the Order. The Production Term will automatically renew for subsequent periods of the same length as the initial Production Term for the Company’s then-current Fees (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to expiration of the then-current Term. Either party may terminate this Agreement during the Evaluation Term immediately for convenience, for any reason or no reason, at any time by giving written notice to the other party. During the Production Term or any Renewal Term, either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
6.2 Effects of Termination. Upon termination of this Agreement for any reason, Customer shall immediately discontinue any use of the Solution. Sections 3.3, 3.4, 3.5, 3.6, 3.7, 4, 5, 6.2, 7, 8, 9 and 10 will survive.
7. CONFIDENTIALITY.
7.1 Confidential Information. For the purposes of this Agreement, “Confidential Information” means any and all information disclosed or made available by either party to the other which is designated as confidential, or which should otherwise be understood to be confidential, including but not limited to, the Solution, the Documentation, Customer Business Process Data, financial information, product plans, business plans, trade secrets, technology, or any other proprietary information, whether transmitted orally, in writing, or by any other media. Confidential Information does not include information the receiving party can demonstrate was: (a) publicly available through no fault of the receiving party, or (b) obtained from third parties not under confidentiality restrictions.
7.2 Non-Use and Non-Disclosure. Each party agrees: (i) to use Confidential Information of the other party solely in accordance with the provisions of this Agreement; and (ii) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information of the other party to any third party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own Confidential Information, but in no event shall either party use less than reasonable care in safeguarding the Confidential Information of the other party. Either party may disclose Confidential Information of the other party which required to be disclosed by law or order of a court or other governmental entity; provided that such party provides the other party with prompt notice of such requirement, assists the other party in seeking a protective order or other protection, and only discloses that portion of the Confidential Information that is required to be disclosed, and provided further that any information so disclosed retains its confidentiality protections for all other purposes. Company shall have the right to disclose this agreement and its terms to its investors and potential sources of funding.
7.3 Use of Solution. Customer is responsible for maintaining the secrecy of any passwords or codes that provide access to the Solution as the Confidential Information of Company, and the parties hereby acknowledge and agree that the Solution, any software provided by Company to Customer, the Usage Data and the Documentation are the Confidential Information of Company notwithstanding any failure to designate such materials as “Confidential.”
7.4 Remedy. If either party breaches, or threatens to breach the provisions of this Section, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
8. INDEMNIFICATION.
8.1 By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the permitted use of the Solution or a Suggestion infringes, misappropriates or violates any third-party patents, copyrights, trademarks, and trade secrets. If any portion of the Solution becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Solution; (b) replace the Solution with non-infringing software or services which do not materially impair the functionality of the Solution; (c) modify the Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Company for the remainder of the Term, and upon such termination, Customer will immediately cease all use of the Solution. Notwithstanding the foregoing, Company shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (q) Customer Business Process Data uploaded to the Solution; (r) Customer’s failure to properly use the filtering features or functionality of the Solution designed to avoid replication of existing third-party content, if available; (x) any use of the Solution or a Suggestion not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Solution or Suggestions in combination with other products, equipment, software or data not supplied by Company, where there would be no infringement but for such combination; or (z) any modification of the Solution or Suggestions by any person other than Company or its authorized agents, where there would be no infringement but for such modification. This Section states Company’s entire liability and Customer’s sole and exclusive remedy for the claims and actions described herein. Notwithstanding the foregoing, Customer acknowledges and agrees that Company’s indemnification obligations under this Section 6 do not extend to any claims related to Customer’s or Authorized Users’ use of the Solution, or any Suggestions generated, during the Evaluation Term.
8.2 By Customer Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging (a) that the Customer Business Process Data or any other data provided to Company by Customer hereunder infringes, misappropriates or violates any third-party patents, copyrights, trademarks, trade secrets, or other proprietary rights; or (b) Customer’s use of the Solution, alone or in combination with third-party products, violates applicable law or infringes, misappropriates or violates any third-party patents, copyrights, trademarks, trade secrets or other proprietary rights. This Section sets forth Customer’s entire liability and Company’s sole and exclusive remedy for the claims and actions described herein.
8.3 Procedure. Any party that is seeking to be indemnified under the provisions of this Section (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder, (b) give the Indemnifying Party sole control over the defense of such claim, suit or action and any related settlement negotiations, and (c) cooperate and, at Indemnifying Party’s reasonable request and expense, assist in such defense.
9. WARRANTY DISCLAIMER, RESPONSIBILITY AND LIMITATION OF LIABILITY.
9.1 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOLUTION, SUGGESTIONS AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOLUTION, SUGGESTIONS AND DOCUMENTATION INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SUGGESTIONS ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS.
9.2 RESPONSIBILITY FOR USE. CUSTOMER, AND NOT COMPANY, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE SOLUTION, INCLUDING ANY USE OF, OR ERRORS IN, THE SUGGESTIONS OR OTHER RESULTS OF THE SOLUTION AND DECISIONS MADE OR ACTIONS TAKEN BASED ON THE SOLUTION.
9.3 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 1.6, AND A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR USE OR LOSS OF DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EXCLUDING CUSTOMER’S OBLIGATION TO PAY THE FEES, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (I) ONE HUNDRED DOLLARS (US$100), OR (II) THE FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE ACT GIVING RISE TO SUCH CLAIM, WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
10. GENERAL PROVISIONS
10.1 Assignment. Neither party shall assign this Agreement or any of its rights or duties under this Agreement, in whole or in part, absent the prior written consent of the other party; provided however, that either party may assign all of its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Agreement, whether by merger, reorganization, operation of law, or otherwise without the prior written approval of the other party. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
10.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement is governed by the laws of the State of California, excluding its conflict of law provisions, and both parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the Santa Clara County, California.
10.3 Notices. Where Company requires that Customer provides an email address, Customer is responsible for providing Company with a valid and current email address. In the event that the email address Customer provides to Company is not valid, or for any reason is not capable of delivering to Customer any notices required by this Agreement, Company’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to Company at the following email address: support@orcaai.com. Such notice shall be deemed given when received by Company.
10.4 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
10.5 Force Majeure. Neither party shall be liable for any delay or failure in performance due to acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics (including COVID-19), and similar occurrences beyond its control, whether or not foreseeable. Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of a delay which is excusable under this provision.
10.6 Entire Agreement; Amendment. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter herein. Company may update this Agreement from time to time in its discretion. When changes are made, Company will make a new copy of this Agreement available with the Solution. If Company makes any material changes and Customer has provided an email address to Company, Company will also send an email with an updated copy of this Agreement to Customer at such email address. Unless otherwise stated in such update, any changes to this Agreement during the Evaluation Term will be effective within thirty (30) days after posting or at the commencement of the Production Term (whichever is sooner). If Company updates this Agreement during a Production Term, the then-current Agreement will govern through the expiration of the then-current Term, and the updated Agreement will be effective upon the commencement of a subsequent Renewal Term. IF CUSTOMER DOES NOT AGREE TO ANY CHANGE(S), CUSTOMER SHALL STOP USING THE SOLUTION OR EXERCISE ITS RIGHT TO NOT TO RENEW THE TERM IN ACCORDANCE WITH SECTION 6.1.
Last Modified: March 11, 2024