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AI PLATFORM TERMS OF SERVICE

Effective Date: July 27, 2020

These AI Platform Terms of Service (“AI Platform Terms”) constitute a binding contract between Licensee (defined in Section 1) and Akkio Inc. (“Akkio”) that govern Licensee’s use of the AI Platform (defined in Section 1) for evaluation purposes.

BY ACCEPTING THESE AI PLATFORM TERMS THROUGH THE REQUIRED PROCESS OR OTHERWISE ACCESSING OR USING THE AI PLATFORM, LICENSEE REPRESENTS AND WARRANTS THAT: (1) LICENSEE HAS READ AND UNDERSTANDS THESE AI PLATFORM TERMS, AND AGREES TO BE BOUND LEGALLY BY THESE AI PLATFORM TERMS; (2) LICENSEE IS EITHER AT LEAST 18 YEARS OF AGE OR HAS THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO USE THE AI PLATFORM AND WHO WILL SUPERVISE LICENSEE’S USE; AND (3) IF LICENSEE IS ACCESSING THE AI PLATFORM ON BEHALF OF A LEGAL ENTITY, THEN LICENSEE HAS THE AUTHORITY TO AND HEREBY DOES BIND SUCH LEGAL ENTITY TO THESE AI PLATFORM TERMS. IF LICENSEE DOES NOT AGREE WITH THESE AI PLATFORM TERMS OR OTHERWISE HAVE THE AUTHORITY TO ACCEPT THEM, THEN LICENSEE MUST REJECT THESE AI PLATFORM TERMS THROUGH THE REQUIRED PROCESS.

1. Definitions

a. “AI Platform” means Akkio’s proprietary web-based software platform available at https://www.akk.io that has been programmed to help end-users build and deploy artificial intelligence models and to implement improvements upon itself.

b. “AI Platform Arising IP” means all Technology other than the Licensee Models that is generated, developed, fixed in a tangible medium, conceived or reduced to practice by or on behalf of either party arising from or in connection with any execution, operation or use of the AI Platform before, on or after the date these AI Platform Terms take effect (including, without limitation, the AI Platform processing, storing, organizing, arranging, selecting, aggregating, adapting or otherwise using or exploiting any data (including, without limitation, Licensee Data), content, information, materials or other inputs transmitted, submitted or uploaded to the AI Platform).

c. “Akkio Confidential Information” means any information Akkio or any party acting on its behalf discloses to Licensee, whether in writing or orally, and whether before, on or after the date the AI Platform Terms take effect, which is either designated as “confidential” at the time of disclosure or reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. For the avoidance of doubt and notwithstanding the foregoing, Akkio Confidential Information includes the AI Platform and all information about its performance.

d. “Licensee” means: (i) in the case of an individual who accepts these AI Platform Terms or otherwise accesses or uses the AI Platform on his or her own behalf, such individual; or (ii) in the case of an individual who accepts these AI Platform Terms or otherwise accesses or uses the AI Platform on behalf of a legal entity, the legal entity.

e. “Licensee Data” means any table, video, image, audio, text, sequence data or other content that Licensee: (i) owns or controls prior to entering into these AI Platform Terms or on or after that date but independent of any access to or use of the AI Platform; and (ii) uploads to the AI Platform using the available functionality in the “INPUTS” section of the AI Platform.

f. “Licensee Model” means the specific copy of a predictive model that: (i) Licensee generates on the AI Platform by clicking on the “Predict” button in the “FLOW STEPS” section of the AI Platform and thereby causing the AI Platform to process and analyze Licensee Data; and (ii) is visually presented to Licensee in digital format on the AI Platform’s user interface. Notwithstanding the foregoing and for clarity, Licensee Models do not include any Akkio IP that may be in whole or part incorporated into or embodied by any Licensee Models, and all such incorporated or embodied Akkio IP remains Akkio IP that is solely owned by Akkio.

g. “Technology” means any or all of the following: (i) works of authorship, including, without limitation, software and documentation; (ii) inventions (whether or not patentable), discoveries and improvements; (iii) proprietary and confidential information, trade secrets and know-how; (iv) databases, data compilations, data collections, and data (including, without limitation, technical data); (v) tools, methods, techniques, processes, procedures, algorithms and models; and (vi) all instantiations or embodiments of: (1) any of the foregoing in (i) through (v) inclusive; or (2) any intellectual property rights recognized by the laws of any jurisdiction worldwide, the case of (1) and (2), in any form or media.

h. “Usage Caps” means any limits on the number and/or frequency of Licensee Models that Licensee may generate on the AI Platform.

2. Scope. These AI Platform Terms are hereby incorporated into and governed by the Website Terms of Service located at https://www.akk.io/terms (“Website Terms”). That means all of the terms in the Website Terms apply to these API Platform Terms as if all of the terms in the Website Terms were set forth in this document. If there is any conflict or inconsistency between these AI Platform Terms and the Website Terms, then these AI Platform Terms will control to the extent of the conflict or inconsistency.

3. Proprietary Rights

a. Ownership. As between the parties: (i) Akkio solely owns all rights, title and interest (including all intellectual property rights) in and to all: (1) AI Platform Arising IP; and (2) Technology that Akkio owns or controls prior to when these AI Platform Terms take effect or on or after that date but independent of these AI Platform Terms (including, without limitation, all models, algorithms, software, know-how, trade secrets and other Technology that constitutes or embodies the AI Platform in whole or part) ((1) and (2) collectively, the “Akkio IP”); and (ii) Licensee solely owns the Licensee Data and Licensee Models. If any ownership rights in or to any aspect of the Akkio IP vests in Licensee under any circumstances, then Licensee will, and hereby does, irrevocably and unconditionally assign to Akkio all such rights (without any further consideration due to Akkio, where the rights granted to Licensee under these AI Platform Terms are agreed to constitute sufficient consideration for such assignment). Licensee acknowledges that: (A) Licensee’s rights to any Licensee Models are limited to the specific copy presented to Licensee on the AI Platform’s user interface, and Licensee has no rights to any other copies or versions of the Licensee Models; and (B) other AI Platform users may generate models using the AI Platform that are the same as or similar to the Licensee Models under certain circumstances, such as when other AI Platform users provide input that is the same as or similar to the Licensee Data to generate models on the AI Platform. Licensee hereby irrevocably and unconditionally waives all rights to directly or indirectly challenge, or assist any third party in challenging, the rights of Akkio or any third party in or to any Licensee Models.

b. Licences

i. AI Platform and Incorporated Akkio IP.

(1) Akkio hereby grants to Licensee during the Term (defined in Section 5(a)) a non-exclusive, non-transferable, non-sublicensable, worldwide and revocable license to access and use the AI Platform subject to any Usage Caps solely for Licensee’s internal, non-commercial evaluation purposes. If Akkio incorporates any AI Platform Arising IP into the AI Platform during the Term, then such incorporated AI Platform Arising IP are deemed included in all references to the “AI Platform” in these AI Platform Terms and will be subject to these AI Platform Terms for so long as such AI Platform Arising IP remain so incorporated into the AI Platform.

(2) If, and only if, any Akkio IP is incorporated into or embodied by any Licensee Models, then Akkio will, and hereby does, grant to Licensee a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use and exploit such incorporated or embodied Akkio IP solely as and to the extent so incorporated into or embodied by the Licensee Models; provided, for clarity, the foregoing does not provide Licensee with any rights to use or exploit any such incorporated or embodied Akkio IP on a standalone basis or otherwise separate from the Licensee Models into which such Akkio IP is incorporated or by which such Akkio IP is embodied.

ii. Restrictions. Licensee will not, and will not authorize any third party to: (i) implement or deploy any Licensee Model in any product or service that is distributed or commercialized (including on a software-as-a-service or hosted basis) to any third party; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, models, underlying user interface techniques, or algorithms of the AI Platform; (iii) modify the AI Platform, or sell, lease, license or otherwise commercialize or distribute the AI Platform; (iv) interfere with or disrupt the performance of the AI Platform; (v) gain unauthorized access to the AI Platform or its related systems or networks; (vi) use any portion of the AI Platform to develop a competitive product or service to those being developed or offered by Akkio; (vii) use the AI Platform in a manner that violates any Usage Caps or otherwise in any manner that is not expressly authorized in these AI Platform Terms; (viii) remove, alter, or obscure in any way any proprietary rights notices of Akkio or its suppliers on or within the AI Platform; (ix) transmit to the AI Platform any virus, worm, spyware or other software code, file or program intended to impair, alter or damage the operation of the AI Platform or its related systems or networks; and (x) use the AI Platform in any manner that violates any applicable laws, rules or regulations or infringes any third party intellectual property or other rights.

iii. Licensee Models and Licensee Data. Licensee hereby grants to Akkio: (1) a non-exclusive, perpetual, irrevocable, transferable, worldwide and royalty-free license to use, reproduce, modify and otherwise exploit the Licensee Models; and (2) during the Term a non-exclusive, irrevocable, non-transferable, royalty-free and worldwide right to use, reproduce, modify and otherwise exploit Licensee Data, in each case of (1) and (2), to create, develop, operate, provide, maintain, support, update, enhance, modify, train, improve, and otherwise use and exploit the Akkio IP and all current or future Akkio products, services and technology. Akkio has the right to grant and authorize sublicenses (through multiple tiers) to the foregoing licenses in this Section 3(b)(iii) in its sole discretion. Akkio remains liable for ensuring sublicensees comply with the scope of the licenses in this Section 3(b)(iii).  

iv. Feedback. Licensee will provide Akkio with feedback about Licensee’s use of and experience with any aspect of the AI Platform and Licensee Models (“Feedback”). Licensee hereby grants to Akkio a non-exclusive, perpetual, irrevocable, transferable, worldwide and royalty-free license, with the right to grant and authorize sublicenses (through multiple tiers), to use and exploit such Feedback in any manner without any restriction or any payment or credit due to Licensee.

v. Reservation of Rights. All rights that a party does not expressly grant to the other in these AI Platform Terms are hereby reserved and neither party grants to the other any implied licenses in these AI Platform Terms under any theory.

4. Consideration. Akkio in its sole discretion may choose to charge the Licensee fees for use of the AI Platform before Licensee obtains access to the AI Platform. In those cases, Akkio will identify the applicable fees payable, and when they are due, in writing.

5. Term and Termination.

a. Term. These AI Platform Terms are effective when Licensee accepts them or first accesses any part of the AI Platform, whichever occurs first, and will run until these AI Platform Terms are terminated under Section 5(b) (“Term”).

b. Termination. These AI Platform Terms automatically will terminate upon any termination of the Website Terms. Licensee may terminate these AI Platform Terms for any or no reason upon written notice to Akkio at support@akk.io. Akkio may, at its sole discretion, terminate these AI Platform Terms, and/or limit, suspend or terminate Licensee’s access to the AI Platform, at any time for any reason or no reason, with or without notice.

c. Effects of Termination. Upon any expiration or termination of the AI Platform Terms: (i) the license granted to Licensee in Section 3(b)(i)(1) will immediately terminate; (ii) Licensee must permanently delete all copies of Akkio Confidential Information within Licensee’s possession or control, if any, and certify the same has been completed upon request by Akkio; and (iii) the following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to extent required for such interpretation or enforcement), will survive: 1, 2, 3(a), 3(b)(i)(2), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 4, 5(c), 6, 7, 8 and 9.  

6. Confidentiality. Licensee agrees that the Akkio Confidential Information constitutes and embodies valuable Akkio trade secrets. Licensee may use the Akkio Confidential Information only as necessary to exercise Licensee’s express rights under these AI Platform Terms and Licensee may not disclose any Akkio Confidential Information to any third party without Akkio’s prior written consent. Licensee agrees that Licensee will protect the Akkio Confidential Information from unauthorized access, use and disclosure in the same manner that Licensee would use to protect Licensee’s own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.

7. Representations and Warranties. Licensee represents and warrants that: (a) the Licensee Data and the Licensee Models do not, and Akkio’s use of the Licensee Data and Licensee Models as permitted in these AI Platform Terms will not, infringe, misappropriate or violate the rights of any third party or any applicable laws, rules or regulations; (b) Licensee will not use the Licensee Models in violation of any applicable law, rule or regulation, any third party rights or in any manner that could subject Akkio to any laws, rules or regulations that otherwise would not apply to Akkio; (c) Licensee has, and will continue to have, all necessary rights to grant Sonde the rights set forth in these AI Platform Terms; (d) entering into these AI Platform Terms and performing Licensee’s obligations under these AI Platform Terms do not, and will not, breach or otherwise conflict with Licensee’s obligations to any third party; and (e) Licensee has had the opportunity to consult with independent legal counsel prior to accepting these AI Platform Terms even if Licensee has chosen not to do so.

8. Changes. Akkio may change the AI Platform Terms at any time without prior notice. Akkio will endeavor to provide Licensee with prior notice of any material changes to these AI Platform Terms. Licensee may read a current, effective copy of these AI Platform Terms at any time by selecting the appropriate link on the Service. The revised AI Platform Terms will become effective at the time of posting on the Service, and Licensee’s use of the AI Platform after such time will constitute Licensee’s acceptance of the revised AI Platform Terms. If any change to these AI Platform Terms is not acceptable to Licensee, then Licensee’s sole remedy is to stop using the AI Platform. Notwithstanding the preceding sentences of this Section 8, no revisions to these AI Platform Terms will apply to any dispute between Licensee and Akkio that arose prior to the effective date of those revisions.

9. Disclaimers; Limitations on Liability; Indemnification.  WITHOUT LIMITING ANYTHING SET FORTH IN THE WEBSITE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY LAW:

a. THE AI PLATFORM IS PROVIDED “AS IS” FOR LIMITED EVALUATION ONLY, AKKIO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE AI PLATFORM, AND AKKIO SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AI PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.

b. THE TOTAL LIABILITY OF AKKIO ARISING OUT OF OR RELATED TO THESE AI PLATFORM TERMS WILL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO AKKIO UNDER THESE AI PLATFORM TERMS, AND IN NO EVENT WILL AKKIO HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE AI PLATFORM TERMS.

c. Licensee will defend and indemnify Akkio and its officers, directors, employees, consultants, affiliates, and agents from and against every claim brought or threatened by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in connection with any use of the Licensee Models, or any breach of these AI Platform Terms, in each case, by Licensee or any party acting on its behalf. Akkio reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee (without limiting Licensee’s indemnification obligations with respect to that matter), and in that case, Licensee agrees to cooperate with Akkio’s defense of those claims.