Terms of Service

3.1Permitted Use

Subject to the terms and conditions of this Agreement and each Order, ElastixAI will make the Service available to Customer and, if Customer is a company or entity, to Customer’s Users during the Term. Customer may only use the Service internally.

3.2Access

To access the Service, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide ElastixAI with information (such name, email address, or other contact information). Customer agrees that the information it provides to ElastixAI is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by ElastixAI (“Log-in Credentials”), may access and use the Service. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by ElastixAI’s breach of this Agreement). Customer will promptly notify ElastixAI if it becomes aware of any compromise of any Log-in Credentials. ElastixAI may Process Log-in Credentials in connection with ElastixAI’s provision of the Service or for ElastixAI’s internal business purposes. Customer represents and warrants to ElastixAI that: (a) it has not previously been suspended or removed from the Service; and (b) its registration and use of the Service is in compliance with all Laws.

3.3Restrictions

Customer will not (and will not permit its Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Service to a third party (other than Users); (b) use the Service on behalf of, or to provide any product or service to, third parties; (c) use the Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service, except to the extent expressly permitted by Law (and then only with prior notice to ElastixAI); (e) modify or create derivative works of the Service or copy any element of the Service; (f) remove or obscure any proprietary notices in the Service; (g) publish benchmarks or performance information about the Service; (h) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (i) transmit any viruses or other harmful materials to the Service; (j) take any action that risks harm to others or to the security, availability, or integrity of the Service; (k) access or use the Service in a manner that violates any Law; or (l) use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that ElastixAI is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, ElastixAI has no liability for Prohibited Data or use of the Service for High Risk Activities.

3.4Support

ElastixAI will use commercially reasonable efforts to provide Customer with support for the Service described in the Support Policy (“Support”).

3.5Use of Customer Data

Customer grants ElastixAI the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Service, including to process any Input on the specified Model and to return any Output; (b) derive or generate Usage Data; and (c) as otherwise required by Laws or as agreed to in writing between the parties.

3.6Privacy Policy

ElastixAI will store Customer Data as necessary to provide the Service, and to the extent Personal Data as defined in ElastixAI’s Privacy Policy is uploaded, transmitted, submitted, provided, or processed in connection with Customer’s use of the Service, all storage and processing of Customer Data is governed by and subject to the Privacy Policy. ElastixAI will comply with the Privacy Policy.

3.7Usage Data

ElastixAI may Process Usage Data for internal business purposes to: (a) track use of Service for billing purposes; (b) provide support for Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) to improve Service, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.

3.8Customer Obligations

Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws and the Acceptable Use Policy when using the Service. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for ElastixAI to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process the Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.

3.9Suspension

ElastixAI may immediately suspend Customer’s and its Users’ access to the Service if: (a) Customer breaches Section 3.3 (Restrictions) or Section 3.8 (Customer Obligations); (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that ElastixAI suspend the Service or otherwise may impose additional liability on us; or (d) Customer or its Users’ actions risk harm to any of ElastixAI’s other customers or the security, availability, or integrity of the Service. Where practicable, ElastixAI will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, ElastixAI will use reasonable efforts to restore your access to the Service.

3.10Modifications to the Service

ElastixAI may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service, or adding or removing any Models), temporarily or permanently, without notifying Customer. In the event of any deprecation of any material feature or functionality of the Service without prior notice to the Customer, Customer may terminate this Agreement and ElastixAI will refund Customer any pre-paid, unused Fees. For the avoidance of doubt, the removal of any Model from the Services will not be deemed a deprecation of a material feature or functionality for purposes of this Section. ElastixAI will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof.

3.11Customer Systems

Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer require to access and use the Service as defined in current version of ElastixAI’s usage guidelines and standard technical documentation for the Service that ElastixAI makes generally available to ElastixAI’s customers (“Documentation”).

3.12Third-Party Technology

Use of Third-Party Technology is subject to Customer’s agreements with the relevant provider and not this Agreement. ElastixAI does not control and has no liability for Third-Party Technology, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Technology, or their providers use Customer Data. By enabling a Third-Party Technology to interact with the Service, Customer authorizes ElastixAI to access and exchange Customer Data with such Third-Party Technology on Customer’s behalf.

4.1Fees

Some parts of the Service are offered on a pay-per-use basis. Customers may be required to pay for tokens prior to being able to access the Models. Customers may not be able to access Models if their tokens run out and may be required to purchase additional tokens if Customer’s Account balance is insufficient to access the Models. All purchases of tokens are non-refundable except as expressly authorized by ElastixAI. Any tokens in Customer’s Account are not transferable and have no cash value. Customer is solely responsible for any use of tokens associated with Customer’s Account. Fees for the Service and Models are described in the pricing page. All Fees for the Service (“Fees”) will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced or charged as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for Fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection Fees. All Fees and other expenses are non-refundable. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than ElastixAI’s income tax (“Taxes”). Fees are exclusive of all Taxes.

4.2Authorization

You authorize ElastixAI to charge all sums for the orders or purchases that you make as described in these Terms or published by ElastixAI, including all applicable Taxes, to the payment method specified in your Account. If you pay any Fees with a credit card, then ElastixAI may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that ElastixAI may seek pre-authorization of the credit card account Customer provide to ElastixAI for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase.

4.3Pricing

ElastixAI reserves the right to determine pricing for the Service. We will use reasonable efforts to keep pricing information with respect to the Service that is published on ElastixAI’s pricing page up to date, and ElastixAI encourages Customers to check it regularly for current pricing information. Unless ElastixAI and Customer otherwise agree in an Order executed by the parties, ElastixAI may change the Fees for the Service (including any feature or functionality of the Service) and ElastixAI will notify Customer of any such changes before they apply. ElastixAI may make promotional offers with different features and different pricing to any of ElastixAI’s other customers. These promotional offers, unless made to Customer, will not apply to your Order or this Agreement.

5.1Limited Warranty

ElastixAI warrants to Customer that the Service will perform materially as described in the Documentation during the Term (“Limited Warranty”).

5.2Customer Warranty

Customer warrants to ElastixAI that (a) it has all rights, licenses, permission, power and authority that are necessary to utilize and share the applicable Inputs in association with its use of the Services; (b) it has all rights, licenses, permission, power and authority to access and use the Models; (c) it will use Models, and any Output from the Models, in compliance with applicable laws; (d) neither the Customer Data nor the use, storage, or provision of the Customer Data will infringe, misappropriate or violate any third-parties’ intellectual property rights, any third-party terms, or other rights of a Party, including rights of publicity, privacy or confidentiality; and (e) Customer’s use and provision of the Customer Data will not breach any agreement between it and a third party or violate any laws.

5.3Disclaimers

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1, THE SERVICE AND ALL MODELS, OUTPUTS, AND AVAILABLE CONTENT AND MATERIALS THROUGH THE SERVICE IS PROVIDED “AS IS”. ELASTIXAI, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE AND ANY OUTPUTS GENERATED THROUGH THE MODELS, MODELS OR MATERIALS OFFERED THROUGH THE SERVICE WILL BE UNINTERRUPTED, FREE OF HARMFUL CODE, ACCORDING TO EXPECTATIONS, OR ERROR-FREE, THAT ELASTIXAI WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS, OR THAT ANY ISSUES WILL BE CORRECTED.

ELASTIXAI HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY ANY THIRD-PARTY TECHNOLOGY, INCCLUDING ANY OUTPUT FROM MODELS. THIRD-PARTY TECHNOLOGY MAY NOT BE WARRANTED IN ANY MANNER BY SUCH THIRD PARTIES AND THE DEVELOPMENT OF THE THIRD-PARTY TECHNOLOGY MAY HAVE INFRINGED RIGHTS OF PARTIES, OR MAY HAVE UTILIZED MATERIALS SUBJECT TO COPYRIGHT WITHOUT EXPRESS CONSENT BY THE COPYRIGHT HOLDERS IN JURISDICTIONS WHERE SUCH CONSENT REQUIREMENTS WERE REQUIRED. ELASTIXAI DISCLAIMS THAT ANY THIRD PARTY TECHNOLOGY SHALL BE IN COMPLIANCE WITH LAWS. ELASTIXAI ENCOURAGES ITS CUSTOMERS TO ENSURE THAT OUTPUT GENERATED BY THE MODEL ARE IN FACT NOT SUBJECT TO THIRD PARTY COPYRIGHT RIGHTS, BY HUMAN REVIEW IF NECESSARY, AS MODELS ARE CAPABLE OF GENERATING OUTPUT WHICH MAY INCLUDE COPYRIGHTED MATERIALS.

ELASTIXAI DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY OUTPUT, INFORMATION, OR RECOMMENDATION PROVIDED THROUGH THE MODELS. CUSTOMER WILL NOT RELY ON THE OUTPUT OR ANY RECOMMENDATION AS A SUBSTITUTE FOR ITS OWN INDEPENDENT DETERMINATIONS AND IS RESPONSIBLE FOR ANY ACTS OR OMISSIONS CUSTOMER UNDERTAKES BASED ON RECOMMENDATIONS, OUTPUTS, AND OTHER INFORMATION CUSTOMER RECEIVES FROM THE MODELS. THE OUTPUT IS POWERED BY ARTIFICIAL INTELLIGENCE AND CUSTOMER ACKNOWLEDGES AND AGREES THAT ARTIFICIAL INTELLIGENCE TOOLS ARE NOVEL AND EXPERIMENTAL, AND THAT THEREFORE THERE IS SIGNIFICANT UNCERTAINTY REGARDING THE OPERATION OF SUCH TOOLS. MODELS MAY RETURN INACCURATE OUTPUT THAT DOES NOT ACCURATELY REFLECT REAL PEOPLE, PLACES, OR FACTS. THE MODELS DO NOT AND ARE NOT INTENDED TO PROVIDE ANY SAFETY, LEGAL, FINANCIAL, TAX, ACCOUNTING, OR OTHER PROFESSIONAL ADVICE. THE MODELS ARE CAPABLE OF GENERATING SOME OUTPUT THAT MAY BE INAPPROPRIATE, OFFENSIVE, ILLEGAL IN CERTAIN JURISDICTIONS, SUGGESTIVE, PORNOGRAPHIC, LASCIVIOUS, VIOLENT, GRAPHIC, OR RELATED TO FETISHES AND/OR NOT SUITABLE FOR CHILDREN. ELASTIXAI DOES NOT CONDONE OR IN ANY WAY ENCOURAGE SUCH OUTPUT CREATION. PRIOR TO ANY USE OF THE SERVICES, CUSTOMER AND ITS USERS WILL MAKE THEIR OWN DETERMINATIONS AS TO THE EFFICACY, ACCURACY, LAWFULNESS, AND APPROPRIATENESS OF THE MODELS OR ANY OUTPUT FOR ANY GIVEN USE. CUSTOMER IS SOLELY RESPONSIBLE FOR MONITORING THE PERFORMANCE OF THE MODELS AND CUSTOMER IS ULTIMATELY RESPONSIBLE FOR ITS USE OF THE SERVICE, MODELS, OR OUTPUT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS. THE PARTIES FURTHER ACKNOWLEDGE THAT AREAS OF LAW WHICH APPLY TO THE MODELS ARE EVOLVING RAPIDLY IN VARIOUS JURISDICTIONS. ELASTIXAI’S COMPLIANCE WITH LAWS IN ONE JURISDICTION MAY NOT NECESSARILY RESULT IN COMPLIANCE IN ALL JURISDICTIONS.

ELASTIXAI IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ELASTIXAI’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD.

5.4Warranty Remedy

If ElastixAI breaches a Limited Warranty during the Term and Customer makes a reasonably detailed warranty claim in the manner required by ElastixAI within 30 days of discovering a breach of the Limited Warranty for the Service, then ElastixAI will use reasonable efforts to correct the non-conformity. If ElastixAI cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the Service. ElastixAI will then refund to Customer any pre-paid, unused Fees. This Section 5.4 sets forth Customer’s exclusive remedy and ElastixAI’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Technology, or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.

6.1Term

This Agreement starts on the Effective Date and continues while Customer is still using the Services and has an active Account.

6.2Termination for Convenience

ElastixAI may terminate this Agreement (including any Orders) for convenience at any time. In the event of such termination, ElastixAI will refund Customer any pre-paid, unused Fees. Customer may terminate your Account and this Agreement at any time by emailing ElastixAI at support@elastix.ai.

6.3Termination

Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminate. In addition, ElastixAI may, in its sole discretion, suspend this Agreement or Customer’s Account on the Service, or suspend Customer’s access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such suspension.

6.4Effect of Termination

Upon expiration or termination of an Order, Customer’s access to and ElastixAI’s obligations to provide the Service will cease. ElastixAI will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 10 (Confidentiality), may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

6.5Survival

These Sections survive expiration or termination of this Agreement: 3.3 (Restrictions), 3.7 (Usage Data), 3.8 (Customer Obligations), 4.1 (Fees), 4.2 (Authorization), 5.3 (Disclaimers), 6.4 (Effect of Termination), 6.5 (Survival), 7 (Ownership), 8 (Limitations of Liability), 9 (Indemnification), 10 (Confidentiality), 13.1 (General Provisions), 13.2 (Governing Law), 13.3 (Additional Terms), and 14 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

10.1Definition

“Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Our Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service.

10.2Obligations

As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 3.5 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where ElastixAI is the Recipient, ElastixAI may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 10 and they are bound to confidentiality obligations no less protective than this Section 10.

10.3Exclusions

These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

10.4Remedies

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 10.

10.5Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

13.1General Provisions

This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and ElastixAI regarding your use of the Service. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without ElastixAI’s prior written consent. ElastixAI may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect ElastixAI’s right to require performance at any other time after that, nor will a waiver by ElastixAI of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

13.2Governing Law

This Agreement is governed by the laws of the State of Washington and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Washington and both parties submit to the personal jurisdiction of those courts.

13.3Additional Terms

Customer’s use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that ElastixAI may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.

13.4Consent to Electronic Communications

By using the Service, Customer consents to receiving certain electronic communications from ElastixAI as further described in ElastixAI’s Privacy Policy. Please read ElastixAI’s Privacy Policy to learn more about ElastixAI electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that ElastixAI sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

13.5Contact Information

The Service is offered by ElastixAI, Inc., a Delaware corporation. Customer may contact ElastixAI by sending correspondence to that address or by emailing ElastixAI at support@elastix.ai.

13.6Notice to California Residents

If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.