Terms of Service

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY.  THIS IS AN IMPORTANT LEGALLY BINDING AGREEMENT.

THESE TERMS ARE ENTERED INTO BETWEEN ARIZE AI, INC. (“ARIZE”, “WE”, OR “OUR”) AND YOU OR ANY ENTITY OR INDIVIDUAL YOU ARE AUTHORIZED TO REPRESENT (COLLECTIVELY “CUSTOMER”, “YOU”, OR “YOUR”).  ALL CAPITALIZED TERMS HAVE THE MEANING DEFINED BELOW IN THESE TERMS OR IF APPLICABLE, IN THE ORDER FORM.

READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES.  YOU MUST AFFIRMATIVELY ACCEPT THESE TERMS BY CLICKING “I AGREE” WHEN SIGNING UP FOR AN ARIZE ACCOUNT AND, IF APPLICABLE, PAY THE FEES AS SET FORTH ON ARIZE’S WEBSITE, AVAILABLE AT https://arize.com/pricing, IN ORDER TO ACCESS OR USE OUR SERVICES.  IF YOU DO NOT ACCEPT THESE TERMS, OR IF YOU ACCEPT THESE TERMS AND FAIL TO PAY ANY REQUIRED FEES, YOU MAY NOT ACCESS OR USE OUR SERVICES, AND WE RESERVE THE RIGHT TO TERMINATE YOUR USE OF OUR SERVICES.  BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ARIZE’S PRIVACY POLICY, AVAILABLE AT HTTPS://ARIZE.COM/PRIVACY-POLICY, AND INCORPORATED HEREIN BY REFERENCE.

THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND ARIZE THAT IN ANY WAY RELATE TO THESE TERMS OR YOUR USE OF OUR SERVICES WILL BE RESOLVED BY BINDING ARBITRATION.  ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).  YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION.  PLEASE REVIEW THE SECTION BELOW ENTITLED DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH ARIZE.

1.     Definitions

  • Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
  • Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50 %) of the voting securities of a Person.
  • Agreement” means these Terms together with the applicable terms in the Product Plan, if any.
  • Applications” means one or more Arize software-as-a-service applications, including Free Edition, and Pro Edition, as described in the Product Plan, for monitoring and debugging AI products and any software (other than open-source software) distributed by Arize to Customer for accessing such software-as-a-service applications.  Unless otherwise specified in this Agreement, all references to Applications with respect to Customer shall mean only those Applications to which Customer subscribes.
  • Arize Intellectual Property” or “Arize IP” means the proprietary concepts, approaches, methodologies, know how, models, tools, industry information, knowledge, materials, software, inventions, documents, trade secrets, patents, copyrights, trademarks, service marks and other intellectual property owned by Arize, or licensed to Arize by its licensors, suppliers, vendors, alliance partners, or other Third Parties that (a) existed prior to the Effective Date of this Agreement, (b) are developed or acquired during the performance of the Services, and/or (c) are developed or acquired outside the performance of the Services.
  • Arize Materials” mean Services, Applications, Documentation, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Arize or its subcontractor in connection with the Services or otherwise comprise or relate to the Services or Applications, but excluding any Confidential Information and proprietary information of Customer that is incorporated into the materials. For avoidance of doubt, Arize Materials are Confidential Information of Arize.
  • Confidential Information” means any and all non-public technical or non-technical information disclosed by Disclosing Party to the Receiving Party in any form or medium, whether oral, written, graphical or electronic, that is marked as “confidential” (or with a similar legend) or should reasonably be understood by the Receiving Party to be confidential. Confidential Information does not include information that (a) is or becomes publicly available through no fault or omission of the receiving Party, (b) is or becomes available to the Receiving Party from a Third Party under no obligation of confidentiality to Disclosing Party, (c) was known to Receiving Party prior to the time of disclosure, or (d) was or is independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
  • Customer Data” means any information or data received, obtained, or derived from Customer or its Users through the Applications.
  • Documentation” means the user documentation, user guides and user instructions, whether in printed or electronic form, that Arize makes available to Customer with respect to the Applications or Services, as may be updated from time to time.
  • Effective Date” means the date that Customer has accepted these Terms.
  • Internal Use” means access to or use of the Applications or Services, solely on the Customer’s behalf and for Customer’s benefit, and not for the benefit of any Third Party.
  • Losses” means any and all losses, damages, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  • Party” means Arize or Customer, and “Parties” mean both Arize and Customer.
  • Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
  • Product Plan” means the descriptions (including pricing) of the Applications on Arize’s website, available at https://arize.com/pricing.
  • Services” means the services provided by Arize to Customer in connection with provision of one or more Applications.
  • Third Party” means a Person other than the Parties and their respective Affiliates.
  • Users” means Customer’s employees and consultants (a) who are authorized by Customer to access and use the Services and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Arize at Customer’s request).

2.     Licenses; Use Restrictions.

2.1   License.

2.1.1   Free Edition.  Subject to and conditioned on Customer’s compliance with the terms of this Agreement, Arize hereby grants to Customer and its Users a non-exclusive, royalty-free, non-transferable, and non-sublicensable license to use and access the Free Edition and use the contents of the Free Edition, solely for Customer’s Internal Use and in accordance with the Documentation.

2.1.2   Pro Edition. Subject to and conditioned on Customer’s compliance with the terms of this Agreement, and effective upon receipt of corresponding payment set forth in the Product Plan on a timely basis for the Pro Edition, Arize hereby grants to Customer and its Users a non-exclusive, royalty-free, non-transferable, and non-sublicensable license to use and access the Pro Edition and use the contents of the Pro Edition, solely for Customer’s Internal Use in accordance with the Documentation.

2.2   Use Restrictions.  Customer shall not, or permit any Person to: (i) alter, modify, or make derivative works of the Application or Services; (ii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code, ideas, algorithms or structure underlying any of the Applications or Services or any portion thereof; (iii) use any robot, spider, crawlers, deep-link, automated content scraping script, grabbers or other automatic device, program, techniques, algorithm or methodology to retrieve, index, scrape, data mine or in any way gather, copy or monitor any portion of the Applications, the Services or any content thereof; (iv) deploy or use the Application or Services beyond the number allotted to Customer in accordance with the Product Plan; (v) install, access, or use, or allow the installation, accessing, or use of, the Application or the Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable laws, or rules and regulations of regulatory or administrative organizations; (vi) act in a fraudulent, tortious malicious, or negligent manner when using the Applications or Services; (vii) rent, sell, license, or remarket the Application or Services, or provide access to the Application or Services to any Third Party; (viii) introduce or implement any other code or routine which results in disruption or damage to the Applications or Services; (ix) store, transmit, post or utilize inappropriate, violent, nude, sexually suggestive, discriminatory, offensive, infringing, libelous, or other unlawful materials in violation of any third party privacy rights when using the Applications or Services; (x) use the Applications or Service to analyze samples related to pornographic, obscene, nude, graphically violent, and other inappropriate content; or (xi) resell, transfer, rent, distribute, or otherwise make the Arize Materials, or any results thereof available in whole or in part to any Third Party, Affiliate, or other division or subdivision of Customer.  Customer is responsible for all acts and omissions of its Users.

2.3   Third-Party Materials.   The Application and/or Services may necessitate use of third party hardware, software and/or data products by Customer that are not provided by Arize under this Agreement (“Third Party Materials”).  Customer shall be solely responsible for obtaining licenses to such Third-Party Materials for its own use, subject to any expenses contemplated pursuant to this Agreement.

3.     Customer Obligations.

3.1   Acceptable Use.  Customer shall be solely responsible for its actions and the actions of its Users while using or accessing the Services or Applications.  Customer agrees to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Services and Applications, and Customer many not use the Services or Applications for illegal, fraudulent, unethical or inappropriate purposes.

3.2   Customer Account. Arize will issue for Customer logins and passwords to access and use the Services and Applications.  Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of the user logins and passwords and for ensuring that the user login and password is used only by the Users.  Customer agrees to immediately notify Arize of any unauthorized use of any account or login and password issued to Customer, or any other breach of security known to Customer.  Customer is responsible for any use of Customer account, and Customer is responsible for compliance by each User with the terms of this Agreement.

3.3   No Circumvention of Security.  Neither Customer nor any of its User may circumvent or otherwise interfere with any user authentication or security of the Services or Applications.

4.     Availability; Support.

4.1   Availability.  Subject to the terms and conditions of this Agreement, Arize will use commercially reasonable efforts to make the Services available with minimal downtime for twenty-four (24) hours a day, seven (7) days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Arize will use commercially reasonable efforts to provide at least twenty-four (24) hours advance notice), and (b) routine maintenance and as otherwise specified by Arize, and (c) any unavailability caused by circumstances of Force Majeure described in Section 13.11.  During the Term, at no charge to Customer, Arize may, but has no obligation to, make available to Customer certain enhancements to the Services that are made generally available at no cost to all subscribing customers.  However, the availability of some new enhancements to the Services or Applications may require the payment of additional fees, and Arize will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.  The terms of this Agreement will apply to any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Services or Applications that Arize may subsequently provide to Customer hereunder.

4.2   Support.  Arize will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 AM through 5:00 PM Pacific Time, with the exclusion of any U.S. federal holidays.  Customer may initiate a helpdesk ticket any time by emailing support@arize.com.

5.     Data Privacy.

5.1   Privacy Policy. The Parties shall comply with their respective data privacy obligations as set forth in the Privacy Policy, available at https://arize.com/privacy-policy.  Customer expressly agrees that Arize shall not have any liability for any data loss, damage to, or corruption of the Customer Data.

5.2   Customer Data. Customer agrees that Customer is responsible for complying with all applicable laws and regulations in connection with the collection, transmission, processing, and/or use of Customer Data, including with respect to the data privacy of its Users.  Customer acknowledges and agrees that Customer is responsible for receiving any necessary consents and authorizations necessary for Customer’s or Arize’s use of Customer Data in accordance with all applicable privacy laws including those set forth in the Privacy Policy.

6.     Fees and Payment.

6.1   Fees. With the exception of the Free Edition, Customer shall pay Arize all applicable fees in the amount, at the end of each month based on the level of Services utilized by Customer in the amounts set forth in the Product Plan, as well as sale, use and other taxes due on such amounts (other than amounts based on Arize’s net income).  Customer shall make all payments hereunder in US dollars.   The Free Edition shall be provided to the Customer free at charge, subject to the Customer’s compliance with the terms hereunder.

6.2   Payment.  Customer agrees to provide Arize with a valid credit card or debit card issued by U.S. banks to be stored on file and given authorization to be charged for the Services.  The credit card or debit card information will be used by Arize to initiate payment for the Services at the end of each month.  Arize may obtain preapproval on the credit card or debit card account for an amount up to the amount of the payment set forth in this Section 6. If Customer enrolls to make recurring payments automatically based on the level of Service utilized, all charges and fees will be billed to the account that Customer designates during the setup process.  If Customer wants to designate a different account, or if there is a change in the account, Customer shall promptly provide the updated information.  In such event, Customer’s ability to make online payments may be temporarily delayed while Arize verifies Customer’s new payment information.  Customer represents and warrants that (i) any credit card, debit card and bank account information Customer supplies is true, correct and complete, (ii) charges incurred by Customer will be honored by Customer’s credit/debit card company or bank, (iii) Customer will pay the charges incurred by Customer in the amounts posted, including any applicable taxes, and (iv) Customer is authorized to make a purchase or other transaction with the relevant credit card and credit card information.

6.3   Invoices.   If Customer fails to provide a valid credit card or debit card, or if for some reason Arize is unable to process the payment, Arize will invoice Customer at the end of each month.  Customer agrees to pay all invoiced amounts within fifteen (15) calendar days of the invoice date.

6.4   Overdue Charges.  If Arize does not receive fees by the due date, then at Arize’s discretion, such charges may accrue late interest at the rate of one and half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

6.5   Suspension of Services.  If any amounts owed by Customer are ten (10) or more days overdue, Arize may, without limiting Arize’s other rights and remedies, suspend Customer’s and its Users’ access to the Services or Applications until such amounts are paid in full.

7.     Confidentiality.

7.1   Non-Disclosure.  Each Party acknowledges that in the course of the performance of this Agreement, a Party (“Receiving Party”) may obtain the Confidential Information of the other Party (“Disclosing Party”).  The Receiving Party shall during the Term and for five (5) years thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, provided any confidentiality obligations regarding trade secret shall survive termination or expiration of this Agreement until such time the information no longer qualifies as trade secret under applicable law.  The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable level of care), and to take appropriate action by instruction or agreement with its employees, agents, or Users who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any Person other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.  Customer warrants that each of its Users is bound by terms and conditions at least as restrictive as those terms and conditions applicable to Customer under this Agreement and Customer shall be fully liable for any breach of this Agreement by its Users.

7.2   Exclusions from Non-Disclosure.  A disclosure by the Receiving Party of any of the Confidential Information (1) in response to a valid subpoena or order by a court or other governmental body; or (2) as otherwise required by law shall not be considered to be a breach of this Agreement by the Receiving Party; provided, however, that to the extent allowed under the applicable laws, the Receiving Party shall provide prompt prior written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise to prevent the disclosure.

7.3   Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

8.     Proprietary Rights.

8.1   Applications and Services.  As between Arize and Customer, all right, title and interest in the Arize IP including Applications and the Services, and Arize Materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Applications or the Services, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Arize or Arize’s licensors and providers, as applicable.  Customer hereby does and will irrevocably assign to Arize all evaluations, ideas, feedback and suggestions made by Customer to Arize regarding the Services (collectively, “Feedback”) and all intellectual property rights in the Feedback.

8.2   Arize Developments.  All inventions, works of authorship and improvements, developments or modifications conceived, created, written, or generated by or on behalf of Arize, whether solely or jointly, and all intellectual property rights therein (collectively, the “Inventions”), shall remain the sole and exclusive property of Arize.  Customer hereby unconditionally and irrevocably assigns to Arize all right, title and interest it may have in the Inventions.  To the extent any of the rights, title and interests in and to Inventions cannot be assigned by Customer to Arize, Customer hereby grants to Arize an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to make, use, sell, offer for sale, import, have made, and have sold, the Inventions.  To the extent any of the rights, title and interest in and to Inventions can neither be assigned nor licensed by Customer to Arize, Customer hereby irrevocably waives and agrees never to assert the non-assignable and non-licensable rights, title and interest it may have against Arize, any of Arize’s successors in interest, or any of Arize’s customers.

8.3   Customer Data.  Between the Parties, Customer shall solely and exclusively own the Customer Data. Customer grants Arize a non-exclusive, non-transferable licensed right to use the Customer Data solely to the extent necessary for Arize to provide the Applications or the Services to Customer and for improvement or enhancement of the Applications or the Services.  Notwithstanding anything to the contrary herein, Arize shall solely and exclusively own and hold all right, title and interest in any de-identified, aggregated, and/or anonymized data or information derived from Customer Data (“Aggregate Data”), including all intellectual property rights therein.   In furtherance of the foregoing, Customer hereby unconditionally and irrevocably assigns to Arize an all right, title and interest in and to the Aggregate Data, including all intellectual property rights therein.

9.     Representations and Warranties; Disclaimer.

9.1   Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

9.2   Representations and Warranties by Arize.  For the provision of Services with respect to the Pro Edition, Arize represents, warrants, and covenants to Customer that Arize will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

9.3   Representations and Warranties by Customer.  Customer represents, warrants, and covenants to Arize that (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data in accordance with this Agreement, and (b) the Customer Data do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any Third Party or violate any applicable law (including those set forth in the Privacy Policy).

9.4   Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL APPLICATIONS, SERVICES, AND ARIZE MATERIALS ARE PROVIDED “AS IS.” ARIZE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, ARIZE MAKES NO WARRANTY OF ANY KIND THAT THE APPLICATIONS, SERVICES OR ARIZE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ARIZE MAKES NO WARRANTIES THAT THE SERVICES OR APPLICATIONS WILL IDENTIFY ANY OR ALL BUGS IN AN AI PRODUCT OR APPLICATION.  ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

10.   Indemnification.

10.1   Indemnification by Arize.  Arize shall indemnify, defend, and hold harmless Customer and its officers, directors and employees (the “Customer Indemnitees”) from and against any and all Losses incurred by any of the Customer Indemnitees resulting from any Action by a Third Party alleging use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such Third Party’s U.S. patents, copyrights, or trade secrets.  The foregoing obligation does not apply to the extent that the alleged infringement arises from:

(a)   access to or use of the Third-Party Materials;

(b)   access to or use of the Customer Data;

(c)   access to or use of the Arize Materials in combination with and hardware, system, software, network, or other materials or service not provided by Arize or specified for Customer’s use in the Documentation;

(d)   modification of the Arize Materials other than: (i) by or on behalf of Arize; or (ii) with Arize’s written approval in accordance with Arize’s written specification;

(e)   Customer’s continued use of the Services or Applications after Arize notifies Customer to discontinue the use; or

(f)   failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Arize.

10.2   Indemnification by Customer.  Customer shall indemnify, defend, and hold harmless Arize and its licensors and their respective officers, directors and employees (the “Arize Indemnitees”) from and against any and all Losses incurred by any of the Customer Indemnitees resulting from any Action by a Third Party arise out of or result from, or alleged to arise out of or result from (a) Customer Data, including (i) any claim or threat that the Customer Data (and the exercise by Arize of the rights granted herein with respect thereto) infringes, misappropriates or violates any Third Party’s intellectual property rights and (ii) any processing of the Customer Data in accordance with this Agreement; (b) Customer’s use or alleged use of the Applications or Services other than as permitted under this Agreement; (c) arising from the occurrence of any of the exclusions set forth in Section 10.1 (b) – (e).

10.3   Indemnification Procedures.   Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be.  The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense.  The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.  If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.  The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10.

10.4   Mitigation.  If any of the Services or Arize Materials are, or in Arize’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Third Party’s intellectual property right, or if Customer’s or any of its User’s use of the Services or Arize Materials is enjoined or threatened to be enjoined, Arize may, at its option and sole cost and expense:

(a)   obtain the right for Customer to continue to use the Services and Arize Materials materially as contemplated by this Agreement;

(b)   modify or replace the Services and Arize Materials, in whole or in part, to seek to make the Services and Arize Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Arize Materials, as applicable, under this Agreement; or

(c)   by written notice to Customer, (i) terminate this Agreement with respect to all or part of the Services and Arize Materials, (ii) require Customer to immediately cease any use of the Services and Arize Materials or any specified part or feature thereof, and (iii) refund to Customer on pro-rated basis any pre-paid and unused fees.

10.5   Sole Remedy.   THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ARIZE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND ARIZE MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ARIZE WITH RESPECT THERETO.

11.   Limitation of Liability. 

11.1   No Consequential Damages.  NEITHER ARIZE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EVEN IF ARIZE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF.  ARIZE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

11.2   Cap on Monetary Liability.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF ARIZE AND ITS LICENSORS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED (A) ONE HUNDRED DOLLARS ($100) FOR THE FREE EDITION, OR (B) THE AMOUNTS PAID TO ARIZE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE USE OF PRO EDITION.

11.3   Essential Purpose.   CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

12.   Termination.

12.1   Term.  This Agreement will commence as of the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue in effect until one (1) year from such date (the “Initial Term”).  Thereafter, this Agreement will automatically renew for up to additional successive one (1) year terms unless earlier terminated pursuant to this Agreement or either Party gives the other Party written notice of nonrenewal, served personally or by certified mail to the address set forth herein, at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).

12.2   Termination.  In addition to any other express termination right set forth elsewhere in this Agreement:

(a)   Arize may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any undisputed amount when due hereunder, and such failure continues more than fifteen (15) days after Arize’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.2 (Use Restrictions), Section 3 (Customer Obligations), Section 5 (Data Privacy), or Section 7 (Confidentiality);

(b)   either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the nonbreaching Party provides the breaching Party with written notice of such breach; and

(c)   either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.3   Effects of Termination.  Upon any expiration or earlier termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a)   all rights, licenses, consents, and authorizations granted by Arize to Customer hereunder will immediately terminate;

(b)   Customer shall immediately cease all use of any Services, Application or Arize Materials;

(c)   the Receiving Party shall (i) promptly return to Disclosing Party, or at Disclosing Party’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Confidential Information of the Disclosing Party; and (ii) permanently erase all Confidential Information of Disclosing Party from all of Receiving Party’s systems except for a single copy thereof which may be retained for the sole purpose of determining the scope of the obligations incurred under this Agreement; and (iii) certify to Disclosing Party in a signed written instrument that it has complied with the requirements of this Section 12.3; and

(d)   all fees that are payable hereunder until expiration of the Term will become immediately due and payable, and Customer shall pay such fees, together with all previously-accrued but not yet paid fees and any reimbursable expenses.

12.4   Survival.  The termination or expiration of this Agreement for any reason shall not affect a Party’s rights or obligations that expressly or by their nature continue and survive including, without limitation, Section 1 (Definitions), 7 (Confidentiality), 8 (Proprietary Rights), 10 (Indemnification), 11 (Limitation of Liability), 12.3 (Effects of Termination), and 13 (Miscellaneous).

13.   Miscellaneous.

13.1   Notices.  Arize may give notice to Customer by means of a general notice through the Services interface, electronic mail to Customer’s e-mail address on record with Arize, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Arize.  Except as otherwise provided, Customer may give notice to Arize by written communication sent by electronic mail to Arize’s e-mail address at finance@arize.com,  Attention: Arize Finance.  Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable.  All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

13.2   Governing Law. This Agreement and the rights and obligations of the Parties to and under this Agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The Parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.

13.3   Dispute Resolution and Arbitration; Class Action Waiver. PLEASE READ THE FOLLOWING DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER PROVISION (THIS “PROVISION”) CAREFULLY.  IT AFFECTS YOUR RIGHTS AS THE CUSTOMER.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at support@arize.com.  This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Arize.  Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.  You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Provision carefully.  It provides that all Disputes between you and Arize shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this Provision, “Arize” means Arize AI, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents.  The term “Dispute” means any dispute, claim, or controversy between you and Arize regarding, arising out of or relating to any aspect of your relationship with Arize, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Arize’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

ARIZE AND CUSTOMER EACH AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give Arize an opportunity to resolve the Dispute.  You must commence this process by mailing written notification to Arize AI, Inc., 6114 La Salle Ave #607, Oakland, CA 94611 (“Notice Address”).  That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek.  If Arize does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.  You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or Arize may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”).  You may opt out of this Provision by mailing written notification to Notice Address.  Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Arize through arbitration.  Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Arize.  Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Arize may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Provision governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action or representative action procedures or rules apply to the arbitration.

Because the Applications and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or Arize may initiate arbitration in either San Francisco, CA or the federal judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – Arize will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Arize as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and Arize specifically agree to do so in writing following initiation of the arbitration.  If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you.  Neither you, nor any other user of the Applications can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by entering into these Terms you and Arize are each waiving the right to a jury trial or a trial before a judge in a public court.  In the absence of this Provision, you and Arize might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions).  Except as otherwise provided below, those rights are waived.  Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your service with Arize or its affiliates.  Notwithstanding any provision in these Terms to the contrary, we agree that if Arize makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Arize to adhere to the present language in this Provision if a dispute between us arises

13.4   Publicity. Arize has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services and Applications provided hereunder in each case in Arize business development and marketing efforts, including without limitation Arize’s web site.

13.5   Export. The Services utilizes software and technology that may be subject to United States and foreign export controls.  Customer acknowledges and agrees that the Services or Applications shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  By using the Services or Applications, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Services and Applications may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.  Arize and its licensors make no representation that the Services or Applications are appropriate or available for use in other locations.

13.6   Waiver. No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted.  No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.

13.7   Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

13.8   Assignment. Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Arize, such consent not to be unreasonably withheld, and subject to Customer’s timely payment of any applicable transfer or set-up fees.  Any purported assignment or transfer in violation of this section shall be void.  Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.

13.9   Relationship of the Parties. The relationship between the Parties is that of independent contractors.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties.  Neither Party has the authority to contract for or bind the other or to incur any obligation on its behalf.

13.10   Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

13.11   Force Majeure. Except for Customer’s payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; epidemics or pandemics; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.

13.12   Entire Agreement; Order of Precedence; Amendment. This Agreement, including all Product Plan, exhibits and all documents referenced herein, constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.  In the event of any conflict between these Terms and the Product Plan, these Terms shall control.  No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.