Terms of Service

These Terms of Service (the “Terms”) and any accompanying or future order form, online order or similar agreement you enter into with d, Inc. (“AI Squared” or “we”) issued under these Terms (each an “Order” and, together with these Terms, the “Agreement”) govern your access to and use of the services provided to you by AI Squared (the “AI Squared Services”). As set forth in an Order or as otherwise agreed to by AI Squared, the AI Squared Services may include one or more of the following: (a) subscription platform services, including any support services to which you may be subscribing (the “Subscription Services”), (b) training services (the “Training Services”), or (c) any other services the parties agree that AI Squared shall provide. If you are acting on behalf of an entity, you represent and warrant that you are authorized to bind that entity to these Terms, in which case “Subscriber,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). By accepting these Terms, either by executing these Terms separately or by executing an initial Order that indicates your acceptance of these Terms (an “Initial Order”), whether by signature or by clicking an “I Accept” button or checkbox, you agree in full to these Terms. If you do not have authority to bind your entity or do not agree with these Terms, you must not accept these Terms and may not use the AI Squared Services. The “Effective Date” of these Terms is the earliest to occur of the effective date of the Initial Order, the date you execute these Terms, or the date you first access or use the AI Squared Services.  If you are executing a pilot with AI Squared, Ai Squared’s pilot terms shall apply.

1. Orders. Any Order agreed to by the parties shall be incorporated by reference into the Agreement and shall identify: (a) specific AI Squared Services to be provided, (b) any limitations on permitted use that may differ from those set forth in these Terms, (c) the service term or other timing considerations, (d) service fees and any additional payment terms, (e) any applicable limitations on number or type of Authorized Users (as such term is defined in Section 2.a)i) below), and (f) any other applicable terms and conditions. To the extent any provision in an Order clearly conflicts with a provision of these Terms or a provision of an earlier Order, the provision in the new Order shall be binding and the conflicting provision in these Terms or in the earlier Order shall be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order (unless expressly intended to permanently amend the Agreement). Capitalized terms used but not defined in an Order shall have the meaning assigned to them, if any, within these Terms.
2. AI Squared Services.
   • Subscription Services.
     • Authorized Users. If we have agreed to provide you with Subscription Services, you may select individuals (your employees or agents) to access and use the Subscription Services, subject to any numeric or other limits established in an Order or as otherwise agreed to by the parties, and you will obtain separate credentials (user IDs and passwords) via the AI Squared Services for such individuals (each an “Authorized User”). Subject to these limitations, Authorized Users may be changed upon reasonable notice at your request during a service term or as otherwise agreed by the parties. You will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (a) taken by AI Squared or by a party acting under the direction of AI Squared or (b) an action by a third party that AI Squared should reasonably have prevented. You are responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity to access or use the Subscription Services. You shall be fully responsible for any unauthorized use as set forth under this Section 2.a)i), including the payment of appropriate additional Fees (defined below) applied on a retroactive basis to such unauthorized use. Unless otherwise provided in an Order, refunds will not be provided and Fees will not be decreased during a service term if the number of Authorized Users decreases for any reason.
     • Provision of Subscription Services. Subject to your compliance with the terms and conditions of this Agreement (including your payment of any fees (“Fees”) as due under Section 5 (Payment)), AI Squared will provide you with the Subscription Services, and you and your Authorized Users may access and use the Subscription Services solely for your internal business purposes. AI Squared reserves the right to improve or otherwise modify its internal system architecture at any time subject to maintaining appropriate industry standards of practice relating to the provision and security of the Subscription Services. You retain all ownership rights in Customer Data (as defined below in Section 3.c)), in any other information or materials you provide to AI Squared to enable AI Squared to perform any of the AI Squared Services, and in any output you generate from your use of the Subscription Services.
   • Training Services.
     • Generally. AI Squared may provide, as set forth in an Order, certain Training Services, either delivered (x) by instructors (“Instructor-led Training Services”), both in person and online-only; or (y) as a self-paced online training course (“Self-Paced Training Services”). If we have agreed to provide you with Training Services, we will provide qualified training personnel and/or suitable training materials. You shall make available to AI Squared any materials AI Squared reasonably requires to perform the Training Services.
     • Instructor-led Training Services. If we have agreed to provide you with Instructor-led Training Services, we will provide qualified training personnel and suitable training materials and, except as otherwise mutually agreed upon by the parties, you will, as reasonably applicable: (i) provide qualified personnel to assist in coordinating and implementing the Instructor-led Training Services; (ii) provide AI Squared with access to your sites and facilities (or temporary off-site facilities) during normal business hours and as otherwise reasonably required by AI Squared to perform the Instructor-led Training Services; (iii) provide AI Squared with such working space and office support (including access to telephones, photocopying equipment, and the like) as AI Squared may reasonably request; and (iv) perform your duties and tasks as may be reasonably required to permit AI Squared to perform the Instructor-led Training Services, including any such duties and tasks that may be set forth in an Order.
     • Self-Paced Training Services. AI Squared may make available certain Self-Paced Training Services. Unless otherwise set forth in an Order or when signing up for a self-paced training course, the Self-Paced Training Services shall expire 12 months from activation and are licensed on a per- user basis.
   • Downloadable Services. AI Squared may offer to make available to you certain AI Squared Services from time to time in a downloadable manner (“Downloadable Services“). Unless expressly stated otherwise at the time of download or as otherwise agreed by AI Squared, Downloadable Services may only be used as a part of the AI Squared Services. You are granted a non-exclusive, royalty-free right and license to use and copy during the term of this Agreement the Downloadable Services solely as necessary to enable your use of the AI Squared Services.
   • Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the AI Squared Services (“Feedback”). If you choose to offer Feedback to AI Squared, you hereby grant AI Squared a perpetual, irrevocable, non-exclusive, worldwide, fully- paid, sub-licensable, assignable license to incorporate into the AI Squared Services or otherwise use any Feedback AI Squared receives from you.
   • Ownership of the AI Squared Services. Except as expressly set forth in this Agreement, AI Squared retains all worldwide intellectual property rights available under applicable law including, without limitation, rights with respect to patents, copyrights, trademarks, trade secrets, know-how, and databases (“Intellectual Property Rights”) and all other proprietary rights related to the AI Squared Services. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the AI Squared Services as delivered to you. You agree that the AI Squared Services are provided on a non-exclusive basis and not sold. You further acknowledge and agree that portions of the AI Squared Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of AI Squared and its licensors.
3. Customer Obligations; Customer Data.
   • Customer Responsibilities. You:
     • are responsible for taking reasonable steps at all times to maintain the security, protection and backup of all Customer Data residing within your Systems (as defined below in Section 3.b)(G)), including within your accounts held at any cloud service provider, with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access;
     • are responsible for ensuring that AI Squared at all times has updated and accurate contact information for the appropriate person for AI Squared to notify regarding data security issues relating to the AI Squared Services; and
     • acknowledge that: (i) AI Squared does not provide data backup services; and that (ii) subject to Section 9.a), AI Squared is not responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party not under the control of AI Squared. Notwithstanding the forgoing, in the event of any loss or corruption of Customer Data within the AI Squared Services, AI Squared will use commercially reasonable efforts to restore the lost or corrupted Customer Data from any backup of such Customer Data available to AI Squared.
   • Restrictions on Use. You shall not:
     • copy, modify, disassemble, decompile or reverse engineer the AI Squared Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition;
     • sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the AI Squared Services to any third party except to the extent explicitly authorized in writing by AI Squared;
     • use the AI Squared Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible subscription to any AI Squared product or service
     • transfer or assign any of your rights hereunder except as permitted under Section 12.d);
     • interfere with or disrupt (or attempt to interfere with or disrupt) the AI Squared Services, or gain (or attempt to gain) access to any Systems or networks that connect thereto (except as required to appropriately access and use the AI Squared Services);
     • use the AI Squared Services to violate the security or integrity of, or otherwise abuse, any application, computing device, system or network (each a “System”) of any party, including but not limited to gaining unauthorized access to any System (including attempting to probe, scan, monitor, or test the vulnerability of a System), forging any headers or other parts of any message describing its origin or routing, interfering with the proper functioning of any System (including any deliberate attempt by any means to overload a System), implementing denial-of-service attacks (inundating a target with communications requests so it cannot respond effectively or at all to legitimate traffic), operating non-permissioned network services (including open proxies, mail relays or recursive domain name servers), using any means to bypass System usage limitations, or storing, transmitting or installing malicious code;
     • use the AI Squared Services to distribute or facilitate the sending of unsolicited or unlawful (i) email or other messages, or (ii) promotions of any kind;
     • use the AI Squared Services to engage in or promote any other fraudulent, deceptive or illegal activities;
     • use the AI Squared Services to process, store or transmit material, including any Customer Data, in violation of any law or any third party rights, including without limitation privacy rights;
     • during any free trial period granted by AI Squared, use the AI Squared Services for any purpose other than to evaluate the desirability of entering into a paid subscription to the AI Squared Services (in which case, AI Squared reserves the right to charge you for such use at AI Squared’ standard rates without foregoing any other available remedies); or
     • use the AI Squared Services in hazardous or mission-critical circumstances or for uses requiring fail-safe performance, or where failure could lead to death, personal injury or environmental damage, and you further acknowledge that the AI Squared Services are not designed or intended for such use.
   • Customer Data. You represent and warrant to AI Squared that the data and information input or submitted by you or Authorized Users into the Subscription Services or otherwise made accessible to AI Squared by you under this Agreement, including without limitation any data provided to AI Squared support personnel for the purposes of trouble shooting or other customer support (collectively, “Customer Data”), shall not contain:
     • any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement;
     • any data with respect to which your use and provision to AI Squared pursuant to this Agreement would breach any agreement between you and any third party;
     • any data that includes incitements to violence, terrorism or other wrongdoing, or obscene, illicit or deceptive materials of any kind;
     • any data with respect to which its usage as contemplated herein would violate any applicable local, state, federal or other laws, regulations, orders or rules, including without limitation any Privacy Laws as defined below in Section 6.b); or
     • except as may be clearly specified in an Order for your intended use with the AI Squared Services, any unencrypted (x) bank, credit card or other financial account numbers or login credentials, (y) social security, tax, driver’s license or other government-issued identification numbers, or (z) health information identifiable to a particular individual. For the purposes of the prior sentence, “unencrypted” means a failure to utilize industry standard encryption methods to prevent AI Squared and its personnel, including
4. Term.
   • Term of Agreement. The Agreement may be terminated by either party on thirty (30) days’ prior written notice if (i) there are no operative Orders outstanding or (ii) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period. If the Agreement terminates pursuant to the prior sentence due to AI Squared’ material breach, AI Squared shall refund to you that portion of any prepayments related to AI Squared Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
   • Term of Orders. The Term of an Order shall be as specified in the Order.
   • Suspension; Termination. AI Squared may temporarily suspend or terminate the AI Squared Services at any time (i) without notice if AI Squared reasonably suspects that you have violated Section 3, or (ii) if you fail to pay undisputed fees after receiving notice that you are more than 30 days delinquent in payment. Upon termination for any reason, you will purge all stored elements of the AI Squared Services from your Systems, AI Squared will purge all your Confidential Information (defined below) from its Systems, and each party, upon request by the other party, shall provide certification of such action. All provisions of the Agreement that by their nature should survive termination shall so survive, including without limitation each party’s confidentiality obligations under Section 6.a).
5. Payment. Except as otherwise specified in an Order: (a) all Fees owed to AI Squared shall be paid in U.S. Dollars; (b) invoiced payments shall be due within 30 days of the date of your receipt of each invoice; and (c) Fees for all AI Squared Services shall be invoiced in full upon execution of the applicable Order. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable law but in no event more than one and one-half percent (1.5%) per month. You shall be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes.
6. Confidentiality; Data Protection
   • Confidentiality. “Confidential Information” means any business or technical information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. In addition, Customer Data is considered to be your Confidential Information, all non-public elements of the AI Squared Services are considered to be AI Squared’ Confidential Information, and the terms of this Agreement, any information that either party derives relating to the conduct or performance of the other party’s personnel, services or systems, and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 6.a). Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information and in no event less than a reasonable standard of care. Each party’s duty of confidentiality under this Section 6.a) shall continue indefinitely except solely with respect to any portion of the other party’s received Confidential Information (i) that becomes publicly known through no fault of the receiving party; (ii); that is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (iii) that is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (iv) the receiving party can demonstrate through documentary evidence was independently developed by the receiving party without use of or reference to the Confidential Information; provided, however, that a party may to the extent necessary disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 6.a) shall supersede any non-disclosure agreement by and between the parties that would purport to address the confidentiality and security of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
   • Data Protection. AI Squared is certified as ISO/IEC 27001:2013 compliant and shall remain certified to this or an equivalent standard (the “ISMS Standard”) throughout the term of this Agreement. AI Squared acknowledges that it may receive or have access to Personal Data (as defined below) provided by you during the term of this Agreement (the Privacy Laws also define “Processing”, “Processor” and “Controller,” and such terms, along with the term “Personal Data,” shall have the same meaning as they have under the Privacy Laws when used in this Agreement). In relation to all such Personal Data: (i) you shall provide to AI Squared only such Personal Data as is reasonably necessary; (ii) you acknowledge that you are the data Controller of such data and that AI Squared is only acting on your behalf as the data Processor; (iii) you represent and warrant that you have complied and will comply with applicable Privacy Laws in collecting any Personal Data prior to uploading it to or processing it as part of the AI Squared Services; (iv) AI Squared shall implement and maintain technical and organizational measures designed according to the ISMS Standard to protect against unauthorized or unlawful processing of, and accidental loss or destruction of, or damage to, such Personal Data; and (v) AI Squared shall Process such Personal Data solely in accordance with applicable Privacy Laws and your written instructions which are consistent with this Agreement for the purposes of providing the AI Squared Services in accordance with the Agreement. You agree that your use of the AI Squared Services to Process such Personal Data shall be deemed a written instruction to AI Squared to Process such Personal Data. Without limiting the foregoing, AI Squared shall: (i) only disclose such Personal Data to sub-contractors to assist in the provision of the AI Squared Services (and subject to AI Squared ensuring written commitments from such sub-contractors to protect Personal Data with terms substantially equivalent to the terms of this Agreement) or as required by law; (ii) promptly notify Subscriber in writing if AI Squared is aware of any loss, theft, damage or unauthorized or unlawful access to such Personal Data (“Privacy Breach”); and (iii) to the extent that it has possession of such Personal Data, provide reasonable assistance to Subscriber to allow Subscriber to comply with its obligations under the Privacy Laws to disclose, provide access to, modify or correct such Personal Data or provide notice regarding a Privacy Breach. If Subscriber is legally required to provide notice relating to a Privacy Breach, AI Squared shall provide information and cooperation reasonably requested by Subscriber to assist Subscriber in complying with such requirement. The content of any notification that names AI Squared, or from which AI Squared’ identity could be determined, shall be subject to the prior approval of AI Squared, which approval shall not be unreasonably withheld, except as otherwise required by applicable laws, and provided further that conditioning of a notification on AI Squared’ approval shall not prevent Subscriber from complying with its obligations under applicable Privacy Laws. For the purposes of this Section 6, “Privacy Laws” means all applicable statutes, laws or regulations, including without limitation those of the United States, the European Union and European Economic Area (“EEA”) and their member states, Switzerland, and the United Kingdom, that are applicable to the Processing of Personal Data under the Agreement. With respect to the Privacy Laws of the European Union and the EEA, Privacy Laws shall mean, until May 25, 2018, the EU Data Protection Directive (95/46/EC), and after May 25, 2018, the EU General Data Protection Regulation (GDPR).
7. Warranties;Disclaimer
   • Warranties. AI Squared warrants that AI Squared has employed and will continue to employ appropriate industry standards of practice designed to: (i) ensure that its provision of the AI Squared Services under this Agreement will not infringe any third party Intellectual Property Rights or other proprietary rights; (ii) prevent the transmission of malware or malicious code via the AI Squared Services; (iii) meet its performance, confidentiality and other obligations under this Agreement; (iv) prevent unauthorized access to or disclosure of Customer Data; and (v) ensure that the Subscription Services operate during the applicable service order term(s) substantially in accordance with the documentation available at https://docs.squared.ai/ (or such other location as AI Squared may provide, and as may be updated from time to time).
   • Disclaimer. THE WARRANTIES IN SECTION 7.a) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING AI Squared AND AI Squared’ SERVICES PROVIDED HEREUNDER. SUBJECT TO SECTION 9.a), AI Squared SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (BUT SUBJECT ALWAYS TO SECTION 9.a)): (i) SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND BY AI Squared; (ii) WITHOUT LIMITATION, AI Squared DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THEAI Squared SERVICES; (iii)  AI Squared IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE AI Squared SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE; AND (iv) AI Squared’ EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO SECTION 3.a)(C) WILL CONSTITUTE AI Squared’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE AI Squared SERVICES.
8. Indemnification.
   • Indemnification by AI Squared. Subject to Section 8.e), AI Squared (as “Indemnitor”) will defend you, indemnify you and hold you harmless from and against all liabilities, costs, damages and expenses (including settlement costs pre-approved by AI Squared and reasonable attorneys’ fees) incurred by you, including your officers, employees, directors, agents and affiliates (each as an “Indemnitee”), to the extent based upon such third party’s claim that the AI Squared Services, as provided by AI Squared to you pursuant to this Agreement, infringe any Intellectual Property Right or other proprietary right and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are incurred by any Indemnitee. Notwithstanding the foregoing, AI Squared will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (i) the combination, operation or use of the AI Squared Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by AI Squared, if a claim would not have occurred but for such combination, operation or use; or (ii) your or an Authorized User’s use of the AI Squared Services other than in accordance with this Agreement.
   • Indemnification by You. Subject to Section 8.e), you (as “Indemnitor”) will defend, indemnify and hold harmless AI Squared from and against all liabilities, costs, damages and expenses (including settlement costs pre- approved by you and reasonable attorneys’ fees) incurred by AI Squared, including its officers, employees, directors, agents and affiliates (each as an “Indemnitee”) to the extent arising from or related to your breach or other violation of Section 3.
   • Injunction. If your use of the AI Squared Services is, or in AI Squared’ opinion is likely to be, enjoined due to the type of claim specified in Section 8.a), then AI Squared may at its sole option and expense: (i) replace or modify the AI Squared Services to make them non-infringing and of equivalent functionality; (ii) procure for you the right to continue using the AI Squared Services under the terms of this Agreement; or (iii) if AI Squared is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate your rights and AI Squared’ obligation under this Agreement with respect to such AI Squared Services and refund to you any Fees prepaid by you for AI Squared Services not yet provided.
   • Sole Remedy. SUBJECT TO SECTION 9.a) BELOW, THE FOREGOING SECTIONS 8.a) and 8.c) STATE THE ENTIRE OBLIGATION OF AI Squared AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE AI Squared SERVICES.
   • Conditions of Indemnification. As a condition to an Indemnitor’s obligations under this Section 8, an Indemnitee will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
9. Limitation of Liability.
   • Neither party’s liability (i) for unpaid Fees (ii) for death or personal injury caused by its negligence or the negligence of its employees or agents, (iii) for fraud or fraudulent misrepresentation, (iv) under the indemnities set forth in Section 8; (v) for its grossly negligent conduct; or (vi) for any other liability that cannot be excluded or limited by law, is excluded or limited by this Agreement.
   • Subject to Section a) above, neither party shall be liable under or in connection with this Agreement to the other (whether for breach of contract, tort (including negligence), breach of statutory duty or otherwise) for (i) loss of profit or revenue, (ii) loss from damage to business or goodwill, (iii) loss of contracts, (iv) loss of customers, (v) device failure or malfunction, or (vi) any other indirect, incidental, consequential, or special loss, even if a party has been advised of the possibility of such losses occurring.
   • Subject to Sections a) and 9.b) above, the aggregate liability of either party, its employees and its and each of their affiliates’ to the other party arising out of or in connection with the Agreement (and whether such liability arises as a result of breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited in the aggregate in relation to all claims arising from, or in connection with, the Agreement, to the amounts payable to AI Squared as Fees under the applicable Order or Orders for the AI Squared Services in relation to which a dispute arises in respect of the relevant Contract Year (defined below), or, if no such Fees were payable, five thousand dollars ($5,000). For the purpose of this Section 9.c), (i) if more than one claim arises from the same event or series of events, then all such claims shall be treated as one, which will be treated as having arisen on the date on which the first relevant claim arose and (ii) “Contract Year” means the relevant period of twelve months starting on the start date of the applicable AI Squared Service or an anniversary thereof (as appropriate).
   • Notwithstanding anything to the contrary in the Agreement, but subject to Section 9.a), AI Squared disclaims all liability, direct or indirect (and whether for breach of contract, tort (including negligence), breach of statutory duty, or otherwise), in connection with services provided in any free trial period, and in no event shall AI Squared’ total liability for damages relating to services provided in any free trial period exceed five thousand dollars ($5,000) in connection with claims relating thereto.
10. Export. The AI Squared Services, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit your users to access or use any AI Squared Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
11. Equitable Relief. Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 6.a) (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained shall be in addition to, and not foreclose, any other remedies that may be available.
12. General.
    • Governing Law. This Agreement and any dispute or claim arising out of or in connection with them (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to these Terms of Service or the use of the Service shall be instituted exclusively in the federal or state courts located in the Commonwealth of Virginia. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. Notwithstanding the foregoing, AI Squared may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction. In all cases, the application of law shall be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods will not apply.
    • U.S. Government Users. If Subscriber is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Subscriber acknowledges that the Subscription Services constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed and made accessible to U.S. government users as commercial computer software subject to the restricted rights described in 48 C.F.R. 12.212.
    • Entire Agreement, Construction and Execution. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement (including all Orders) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. Nothing in the preceding sentence shall limit or exclude any liability for fraud or fraudulent misrepresentation. The headings in this Agreement are solely for convenience, and shall not be taken into consideration in interpretation of the Agreement. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, to fully review and understand this Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption shall be given in favor of the non- drafting party. This Agreement may not be modified or amended except by mutual written agreement of the parties. This Agreement (including all Orders) may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. A party’s electronic signature or transmission of any document by electronic means shall be deemed to bind such party as if signed and transmitted in physical form.
    • Assignment. No assignment of a party’s rights and obligations under this Agreement is permitted except with the prior written approval of the other party, which shall not be unreasonably withheld; provided, however, that either party may freely make such assignment to a successor in interest upon a change of control.
    • Notice. Any required notice under this Agreement shall be deemed given when received by letter delivered by nationally recognized overnight delivery service or recorded prepaid mail. Unless notified in writing of a change of address, you shall send any required notice to AI Squared, Inc., 160 Spear Street, Suite 1300, San Francisco, CA 94105, USA, attention: Legal Department, and AI Squared shall send any required notice to you directed to the most recent address you have provided to AI Squared for such notice.
    • Force Majeure. Notwithstanding anything herein to the contrary, Subscriber understands and agrees that its use of the AI Squared Services may be interrupted by circumstances beyond AI Squared’ reasonable control, including, without limitation, acts of God, acts of government, changes in law or regulations, acts or omissions of third parties, flood, fire, earthquakes, civil unrest, wars, acts of terror, strikes or other actions taken by labor organizations, computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within AI Squared’ possession or reasonable control, and network intrusions or denial of service attacks, or any other cause, whether similar or dissimilar to any of the foregoing that is beyond AI Squared’ reasonable control (individually or collectively as applicable, “Force Majeure“). AI Squared shall not be responsible or otherwise liable for any Force Majeure or any consequences thereof