Terms of Service
MARKUPS.AI
TERMS OF SERVICE
These Terms of Service (these “Terms”) govern the provision and use of SaaS services (the “Services”) provided by Markups.ai Inc. (“Company”) to the authorized end user of the Services (the “End User”), as outlined in the SAAS Services Order Form and associated SAAS Services Agreement (collectively, the “Order Documents”) between Company and the purchaser of the Services (the “Customer”). These Terms are effective as of the date specified in the Order Documents (the “Effective Date”) and together with the Order Documents containing the Customer’s information, Service scope, and fees, detail the terms and conditions of the agreement to provide the Services between the Company and Customer. By accessing or using the Services, End User and Customer agree to be bound by these Terms. If End User or Customer do not agree, End User and Customer may not use the Services. In the event of a conflict between the applicable terms of the Order Documents and these Terms, the terms of the Order Documents will control and supersede these Terms.
1. SaaS Services and Support
1.1 Provision of Services.
The Company agrees to use commercially reasonable efforts to provide the Services in accordance with the timeline and specifications and subject to the terms and conditions outlined in the applicable Order Documents between Customer and the Company.
2. Restrictions and Responsibilities
2.1 Use Restrictions.
End User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Violation of this Section may result in immediate suspension or termination of the Services without liability to the Company. End User will not store, access, publish, disseminate, distribute or transmit via the Services any material which: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (iv) is otherwise illegal or causes damage or injury to any person or property.
2.2 Export Restrictions.
End User and Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms and will be prohibited except to the extent expressly permitted by the terms of this Terms.
2.3 Compliance.
End User and Customer represent, covenant, and warrant that End User will use the Services only in compliance with Company’s standard published policies then in effect (the “Policies”) and all applicable laws and regulations. End User and Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs, penalties and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from End User’s use of Services. The Services are not legal advice, and should only be utilized by the End User and/or Customer under the supervision of a lawyer. Although Company has no obligation to monitor End User and/or Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing (including by terminating access to the Services in order to prevent further violation).
2.4 Equipment Responsibility.
Customer and/or End User, as applicable, shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). End User and Customer acknowledge that a failure to do so may impact the use of the Services.
3. Proprietary Rights
3.1 Customer / End User Data.
Each of End User and Customer, on the one hand, and Company, on the other hand, understand that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party) to the other party (the “Receiving Party”). Proprietary Information of Company includes non-public, proprietary information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public and proprietary data provided by End User and/or Customer to Company to enable the provision of the Services (“Customer Data”). For the avoidance of doubt, extracts of contract language that do not include identifying information or other non-public information proprietary to the Disclosing Party are not considered to be Proprietary Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person, other than its partners and advisors, any such Proprietary Information and (iii) not to use the Customer’s Proprietary Information for the training of any artificial intelligence models without prior written consent; provided for the avoidance of doubt that the foregoing restrictions shall not prohibit the Company from performing tests of the Services on agreements or contract language excerpts provided by End User or Customer for the purposes of monitoring and/or improving the Services output for End User and/or Customer. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Proprietary Rights.
Customer shall own and retain all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings. No rights or licenses are granted except as expressly set forth herein
3.3 Feedback.
If End User or Customer sends or transmits any data, communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes or improvements to the Services, including without limitation, new features, or requests for improvements or modifications to the output of the Services, or any comments, questions, suggestions, or the like otherwise relating to the Services (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such information. End User and Customer hereby assign to Company on Customer’s and/or End User’s behalf (as applicable) all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
3.4 Excluded Data.
Neither Customer nor End Users will provide any of the following (in any format) to Company or upload any of the following (in any format) in using the Services: any personal health information; biometric information; social security numbers; government identification numbers; credit report information, debit or credit or payment card information; bank or other financial account information or other financial or credit data; any information defined as “sensitive” data under applicable privacy and data protection laws; or any other information or data subject to privacy or data protection laws that Customer or End User is not legally permitted to provide, or has not obtained valid consent to provide, to Company or to upload in using the Services (collectively, “Excluded Data”). Notwithstanding anything to the contrary in these Terms, except to the extent required by applicable law that cannot be waived, Company shall have no obligation or liability under these Terms or otherwise with respect to Excluded Data.
4. Term and Termination
4.1 Term.
Unless earlier terminated in accordance with the terms hereof, these Terms shall be co-terminus with the Order Documents (the “Term”).
4.2 Termination.
The Company may terminate these Terms immediately upon written notice to the Company for material breach of these Terms or the Order Documents or nonpayment. Upon termination of these Terms, all rights to receive the Services shall cease and Customer will, at Company’s request, promptly return or destroy all copies of the Software in Customer’s possession or under Customer’s control.
4.3 Data Retrieval.
Upon termination, Customer will have 30 days to download or export the Customer Data.
5. Warranty
5.1 No Warranty.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. Limitation of Liability
6.1 Limitation on Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, THE COMPANY SHALL NOT BE LIABLE FOR THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND ANY LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
7. Indemnification
7.1 Customer / End User Indemnification Obligation.
Except to the extent expressly attributable to any breach by Company of its obligations hereunder, Customer and End User will indemnify, defend and hold harmless Company from all damages, losses, costs and expenses (collectively “Damages”) required to be paid by Company to an unaffiliated third party as a result of any claim, demand, suit or action (each a “Claim”) by such unaffiliated third party alleging Damages required to be paid by Company as a result of any Claim that arises out of any Customer Data or Excluded Data, including any processing thereof by or on behalf of Company if processed in accordance with the terms of these Terms or Customer’s instruction.
8. Miscellaneous
8.1 Governing Law.
These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
8.2 Entire Agreement.
These Terms along with any Order Documents associated with these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.3 Assignment.
These Terms are not assignable, transferable or sublicensable by Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under these Terms without consent.
8.4 Force Majeure.
The Company shall not be liable for delays or failures to perform due to causes beyond their reasonable control, including acts of God, natural disasters, government actions, or internet service interruptions.
8.5 Severability.
If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
8.6 Data Backup.
Customer is responsible for maintaining its own independent backups of Customer Data, and Customer and End User acknowledge and agree that the Company is not liable for any Customer Data loss.
8.7 Branding.
End User and Customer agree not to use the Company’s name, logo, trademarks, or other branding materials without Company’s prior written consent.
8.8 Terms of Service Updates.
The Company reserves the right to amend, update, or modify these Terms at its sole discretion at any time. Any such amendments, updates, or modifications will be effective immediately upon posting to the website where these Terms are hosted. End User’s continued use of the Services after the posting of revised Terms constitutes End User’s acceptance of such revisions. It is End User’s responsibility to regularly review the Terms to stay informed of any changes.