Rely Service Terms and Conditions
Effective date:
January 8, 2026
Rely Service Terms and Conditions
Effective date:
January 8, 2026
Rely Service Terms and Conditions
Effective date:
January 8, 2026
RELY INTELLIGENCE SERVICE TERMS AND CONDITIONS
Definitions.
1.1 “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder.
1.2 “Customer Input” means information, data, and other content that an Authorized User submits or inputs into the Services in order to be processed by the Services, including prompts used to instruct the Services.
1.3 “Customer Output” means the output generated and returned by the Services to Authorized Users in response to the Customer Input.
1.4 “Customer Data” means information, data or other content that is provided by or on behalf of Customer to Rely or accessed by Rely as authorized or directed by Customer (whether through API or otherwise).
1.5 “Customer IP” means, collectively, Customer Inputs, Customer Outputs, and Customer Data.
1.6 “Documentation” means Rely’s user manuals and guides relating to the Services that Rely makes available to Customer.
1.7 “Initial Service Term” shall have the meaning provided in Section 11 below.
1.8 “Order Form” means the Order Form that Customer completed upon signing up to use the Services, or other similar order form or statement of work entered into by the Parties during the Term of this Agreement.
1.9 “Party” means a reference to Rely and Customer individually, and “Parties” means a reference to Rely and Customer collectively.
1.10 “Rely IP” means the Services, Software (defined below), the Documentation, and any and all intellectual property related thereto, including the platform, the underlying algorithms and source code, and any modifications, changes, or derivative works to or based on any of the foregoing.
1.11 “Renewal Service Term” shall have the meaning provided in Section 11 below.
1.12 “Services” means the software-as-a-service offering and additional related services described in an Order Form, and any and all related maintenance and support. For clarity, the Services do not include Customer IP.
1.13 “Service Term” shall have the meaning provided in Section 11 below.
1.14 “Term” shall have the meaning provided in Section 11 below.
1.15“Trial” shall have the meaning provided in Section 3(c) below.
1.16 “Trial Term” shall mean the length of the Trial as set forth in the Order Form.
Access and Use.
2.1 Provision of Access. Subject to Customer’s full compliance with all terms and conditions of this Agreement, Rely hereby grants Customer a non-exclusive, non-transferable license to access and use the Services during the Term, solely by Authorized Users, for Customer’s internal use and in accordance with the Documentation. Rely may in its sole discretion modify, enhance, or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer hereunder. For the avoidance of doubt, the Parties agree that access and use of the Services are licensed and not sold.
2.2 Use Restrictions. Customer shall not, directly or indirectly: (a) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, language models or other AI models, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (b) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (c) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (d) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (e) remove any product identification, proprietary, copyright or other notices from the Services or Software; (f) use the Services or any Customer Output to develop or train a language model or any other machine learning model, or related products or services (whether competitive with the Services or not), or engage in model extraction or stealing attacks; (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services; (h) create or provide to any third party the results of any benchmark tests or other evaluation of the Services without Rely’s prior written consent; (i) use unauthorized third-party programs (such as “crawlers” or “spiders”) to harvest, scrape, or extract data from the Services; (j) intentionally or knowingly use or otherwise cause the Services to generate or develop infringing or illegal content; (k) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (l) use the Services to develop or create a product or services that are competitive to Rely; or (m) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Rely of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.
Service Levels; Support; Trial Program.
3.1 Service Levels. Subject to the terms and conditions of this Agreement, Rely shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week.
3.2 Support. Subject to the terms and conditions of this Agreement, Rely will provide Customer with the standard support and maintenance services that Rely generally provides to its customers without additional charge from Monday through Friday during Rely’s normal business hours.
3.3 Trial Program. Rely may make available to Customer a trial program as specified in the Order Form for Customer to use the Services solely for Customer’s non-productive evaluation and testing of the Services (the “Trial”) during the Trial Term specified in the Order Form, subject to Customer’s compliance with all its obligations of this Agreement. During the Trial Term, Customer will pay the Trial Fee, if applicable, as specified in the Order Form. Notwithstanding anything else in this Agreement, Customer acknowledges and agrees that (a) the Services under the Trial are provided “AS IS” without warranties of any kind and may not be at the level of performance, functionality, or compatibility of the generally available version of the Services, and (b) Company offers no warranty, indemnity, support or availability commitment for the Trial. Customer agrees to notify Company of any problems or issues with the Services in the Trial.
Intellectual Property Rights and Data.
4.1 Rely IP. As between the Parties, Rely retains all right, title and interest in and to the Rely IP, except for the limited license granted to Customer to access and use the Services in Section 2.1.
4.2 Customer IP. As between the Parties, Customer retains all right, title and interest in and to the Customer IP. Customer grants Rely a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, reproduce, distribute, and make derivative works of Customer IP for the purpose of providing the Services to Customer and perform under this Agreement. Rely may collect, analyze and use Customer IP in a de-identified and aggregated form for any legal business purpose, including for (a) generating aggregated information related to Customer’s and other Rely customers’s use of the Services; (b) analyzing previous and current market conditions; (c) conducting internal research, product development, and improving the Services; and (d) benchmarking. For the avoidance of doubt, Rely may disclose, distribute, or publicly display such de-identified and aggregated Customer IP to other users of the Services as a feature of the Services. In any event, Rely shall not disclose, distribute, or publicly display such de-identified and aggregated Customer IP in any manner that identifies the Customer or any individual user, or where Customer can be reasonably determined as the source of such information.
4.3 Fine-Tuned Model. Rely may use de-identified Customer IP to train any machine learning models for the purpose of fine-tuning the models underlying the Services.
4.4 Usage Data. Rely may collect, retain and use during and after the term of this Agreement, usage data that is derived from the operation of the Services, including patterns identified through the use of the Services and data regarding the performance of the Services (“Usage Data”), which such Usage Data will not contain Customer IP. Rely is free to use Usage Data for any lawful purpose, including to develop and improve the Services.
4.5 Data Protection. Rely will maintain commercially reasonable administrative, physical and technical safeguards for the Services to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer IP properly uploaded to the Services and processed or stored on a computer and/or computer network owned or controlled by Rely in connection with the Services. If, at any time, Rely fails to comply with this Section, Customer may promptly notify Rely in writing of any such noncompliance. Rely will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.
4.6 Reservation of Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Rely IP.
4.7 Publicity. Rely may use Customer’s name and logo to identify Customer as a customer of the Services on Rely’s websites, in marketing materials and in presentations to current and potential investors. Each Party may use the other Party’s name and logo, as well as share general information about the Customer’s use of the Services in case studies, industry presentations, and other publications with the other Party’s consent, such consent shall not unreasonably be withheld. Customer agrees to reasonably cooperate with Rely in these activities.
Customer Responsibilities.
5.1 General. Customer is responsible and liable for all uses of the Services and Customer Outputs, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
5.2 Customer IP. Customer is solely responsible for the accuracy, completeness, quality and legality of (i) the Customer Data and Customer Inputs (including for complying with all applicable laws, rules or regulations and all applicable third-party terms and conditions), (ii) the means by which Customer Data is provided or made available to Rely in connection with the Services, and (iii) the instructions that Customer provides to Rely regarding the collection, accessing, processing, and other actions with respect of Customer Data. Without limiting the foregoing, Customer represents, warrants, and covenants that it has all necessary rights, consents, and authorities to grant Rely access to Customer Data and authorize Rely to collect, access, process and otherwise act with respect of Customer Data as permitted hereunder. Rely is not responsible for verifying the accuracy or completeness of any Customer IP and is also not responsible for any inaccuracies or other errors in the Customer Outputs resulting from any errors in the Customer Inputs or Customer Data.
5.3 Third Party Services. Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Rely is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to use Third Party Services and for Rely to access Third Party Services for the provision and use of the Services, and Customer is solely for complying with any applicable terms or conditions thereof. Rely does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third-party’s terms and conditions.
Fees and Payment.
6.1 Fees. Customer shall pay Rely the fees (“Fees”) as set forth in an Order Form without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in an Order Form. If Customer fails to make any payment when due, without limiting Rely’s other rights and remedies: (i) Rely may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Rely for all costs incurred by Rely in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Rely may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rely’s income.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. If Customer or any of its employees or contractors sends or transmits any communications or materials to Rely suggesting or recommending changes to the Rely IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Rely is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Warranties and Disclaimers.
8.1 Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is a Party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
8.2 Rely. Rely warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the support and professional services under this Agreement in a professional and workmanlike manner.
8.3 Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE RELY IP, SERVICES, AND CUSTOMER OUTPUT ARE PROVIDED “AS IS” AND RELY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RELY 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, RELY MAKES NO WARRANTY OF ANY KIND THAT THE RELY IP, OR ANY SERVICES, OUTPUT 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.
Indemnification.
9.1 Rely Indemnification. Rely shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Rely in writing of the claim, cooperates with Rely, and allows Rely sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Rely, at Rely’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Rely determines that neither alternative is reasonably available, Rely may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9.1 will not apply with respect to portions or components of the Services (a) not created by Rely, including but not limited to Customer IP or Third-Party Products, (b) that are modified by anyone other than Rely where the alleged infringement relates to such modification, (c) combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Rely’s option, defend Rely from and against any Losses resulting from any Third-Party Claim that the Customer Inputs or Customer Data infringes or misappropriates such third party’s intellectual property rights, or any Claims excluded from indemnity obligation in Section 9.1 above, or otherwise from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Rely unless Rely consents to such settlement, and further provided that Rely will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9.3 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND RELY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
. Limitations of Liability.
10.1 Indirect Liabilities. IN NO EVENT WILL RELY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) CUSTOMER BREACH OF ANY AGREEMENTS WITH THIRD PARTIES; OR (F) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RELY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.2 Direct Liability. IN NO EVENT WILL RELY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RELY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT LIMIT RELY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9.1 OR DAMAGES ARISING OUT OF RELY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7.
Term and Termination.
11.1 Term. Service Term, together with the Trial Term are collectively referred to herein as the “Term.”
a) Trial Term. The “Trial Term” shall be as set forth on your Order Form from the Effective Date of this Agreement, unless terminated earlier by either Party upon five (5) days’ notice. Upon the expiration of the Trial Term, this Agreement will automatically continue into the Service Term.
b) Service Term. The initial service term of this Agreement will start on either (i) the date specified in the Order Form or (ii) automatically upon the expiration of the Trial Term and shall continue for one (1) year, subject to early termination as provided herein (the “Initial Service Term”). Following the Initial Service Term, this Agreement will automatically renew for successive renewal terms of one year, subject to early termination (each, a “Renewal Service Term”) unless either Party gives the other Party notice of non-renewal at least ninety (90) days prior to the end of the then-current term. The Initial Service Term and Renewal Service Terms are collectively referred to as the “Service Term.”
11.2 Termination. In addition to any other express termination right set forth in this Agreement: (a) 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: (1) is incapable of cure; or (2) being capable of cure, remains uncured thirty (30) days (or ten (10) days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) 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; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) 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.
11.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Rely IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Rely IP and certify in writing to Rely that the Rely IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
11.4 Survival. Sections 1, 6, 7, 8.3, 9, 10, 11.3, 11.4 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
12.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits and attachments, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
12.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the finder of fact shall modify the offending provision such that such offending provision is valid, legal, and enforceable and in a manner to most closely replicate the Parties’ original intent.
12.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.7 Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.8 Export Regulation. The Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S.
12.9 U.S. Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.
12.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
RELY INTELLIGENCE SERVICE TERMS AND CONDITIONS
Definitions.
1.1 “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder.
1.2 “Customer Input” means information, data, and other content that an Authorized User submits or inputs into the Services in order to be processed by the Services, including prompts used to instruct the Services.
1.3 “Customer Output” means the output generated and returned by the Services to Authorized Users in response to the Customer Input.
1.4 “Customer Data” means information, data or other content that is provided by or on behalf of Customer to Rely or accessed by Rely as authorized or directed by Customer (whether through API or otherwise).
1.5 “Customer IP” means, collectively, Customer Inputs, Customer Outputs, and Customer Data.
1.6 “Documentation” means Rely’s user manuals and guides relating to the Services that Rely makes available to Customer.
1.7 “Initial Service Term” shall have the meaning provided in Section 11 below.
1.8 “Order Form” means the Order Form that Customer completed upon signing up to use the Services, or other similar order form or statement of work entered into by the Parties during the Term of this Agreement.
1.9 “Party” means a reference to Rely and Customer individually, and “Parties” means a reference to Rely and Customer collectively.
1.10 “Rely IP” means the Services, Software (defined below), the Documentation, and any and all intellectual property related thereto, including the platform, the underlying algorithms and source code, and any modifications, changes, or derivative works to or based on any of the foregoing.
1.11 “Renewal Service Term” shall have the meaning provided in Section 11 below.
1.12 “Services” means the software-as-a-service offering and additional related services described in an Order Form, and any and all related maintenance and support. For clarity, the Services do not include Customer IP.
1.13 “Service Term” shall have the meaning provided in Section 11 below.
1.14 “Term” shall have the meaning provided in Section 11 below.
1.15“Trial” shall have the meaning provided in Section 3(c) below.
1.16 “Trial Term” shall mean the length of the Trial as set forth in the Order Form.
Access and Use.
2.1 Provision of Access. Subject to Customer’s full compliance with all terms and conditions of this Agreement, Rely hereby grants Customer a non-exclusive, non-transferable license to access and use the Services during the Term, solely by Authorized Users, for Customer’s internal use and in accordance with the Documentation. Rely may in its sole discretion modify, enhance, or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer hereunder. For the avoidance of doubt, the Parties agree that access and use of the Services are licensed and not sold.
2.2 Use Restrictions. Customer shall not, directly or indirectly: (a) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, language models or other AI models, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (b) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (c) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (d) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (e) remove any product identification, proprietary, copyright or other notices from the Services or Software; (f) use the Services or any Customer Output to develop or train a language model or any other machine learning model, or related products or services (whether competitive with the Services or not), or engage in model extraction or stealing attacks; (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services; (h) create or provide to any third party the results of any benchmark tests or other evaluation of the Services without Rely’s prior written consent; (i) use unauthorized third-party programs (such as “crawlers” or “spiders”) to harvest, scrape, or extract data from the Services; (j) intentionally or knowingly use or otherwise cause the Services to generate or develop infringing or illegal content; (k) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (l) use the Services to develop or create a product or services that are competitive to Rely; or (m) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Rely of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.
Service Levels; Support; Trial Program.
3.1 Service Levels. Subject to the terms and conditions of this Agreement, Rely shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week.
3.2 Support. Subject to the terms and conditions of this Agreement, Rely will provide Customer with the standard support and maintenance services that Rely generally provides to its customers without additional charge from Monday through Friday during Rely’s normal business hours.
3.3 Trial Program. Rely may make available to Customer a trial program as specified in the Order Form for Customer to use the Services solely for Customer’s non-productive evaluation and testing of the Services (the “Trial”) during the Trial Term specified in the Order Form, subject to Customer’s compliance with all its obligations of this Agreement. During the Trial Term, Customer will pay the Trial Fee, if applicable, as specified in the Order Form. Notwithstanding anything else in this Agreement, Customer acknowledges and agrees that (a) the Services under the Trial are provided “AS IS” without warranties of any kind and may not be at the level of performance, functionality, or compatibility of the generally available version of the Services, and (b) Company offers no warranty, indemnity, support or availability commitment for the Trial. Customer agrees to notify Company of any problems or issues with the Services in the Trial.
Intellectual Property Rights and Data.
4.1 Rely IP. As between the Parties, Rely retains all right, title and interest in and to the Rely IP, except for the limited license granted to Customer to access and use the Services in Section 2.1.
4.2 Customer IP. As between the Parties, Customer retains all right, title and interest in and to the Customer IP. Customer grants Rely a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, reproduce, distribute, and make derivative works of Customer IP for the purpose of providing the Services to Customer and perform under this Agreement. Rely may collect, analyze and use Customer IP in a de-identified and aggregated form for any legal business purpose, including for (a) generating aggregated information related to Customer’s and other Rely customers’s use of the Services; (b) analyzing previous and current market conditions; (c) conducting internal research, product development, and improving the Services; and (d) benchmarking. For the avoidance of doubt, Rely may disclose, distribute, or publicly display such de-identified and aggregated Customer IP to other users of the Services as a feature of the Services. In any event, Rely shall not disclose, distribute, or publicly display such de-identified and aggregated Customer IP in any manner that identifies the Customer or any individual user, or where Customer can be reasonably determined as the source of such information.
4.3 Fine-Tuned Model. Rely may use de-identified Customer IP to train any machine learning models for the purpose of fine-tuning the models underlying the Services.
4.4 Usage Data. Rely may collect, retain and use during and after the term of this Agreement, usage data that is derived from the operation of the Services, including patterns identified through the use of the Services and data regarding the performance of the Services (“Usage Data”), which such Usage Data will not contain Customer IP. Rely is free to use Usage Data for any lawful purpose, including to develop and improve the Services.
4.5 Data Protection. Rely will maintain commercially reasonable administrative, physical and technical safeguards for the Services to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer IP properly uploaded to the Services and processed or stored on a computer and/or computer network owned or controlled by Rely in connection with the Services. If, at any time, Rely fails to comply with this Section, Customer may promptly notify Rely in writing of any such noncompliance. Rely will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.
4.6 Reservation of Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Rely IP.
4.7 Publicity. Rely may use Customer’s name and logo to identify Customer as a customer of the Services on Rely’s websites, in marketing materials and in presentations to current and potential investors. Each Party may use the other Party’s name and logo, as well as share general information about the Customer’s use of the Services in case studies, industry presentations, and other publications with the other Party’s consent, such consent shall not unreasonably be withheld. Customer agrees to reasonably cooperate with Rely in these activities.
Customer Responsibilities.
5.1 General. Customer is responsible and liable for all uses of the Services and Customer Outputs, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
5.2 Customer IP. Customer is solely responsible for the accuracy, completeness, quality and legality of (i) the Customer Data and Customer Inputs (including for complying with all applicable laws, rules or regulations and all applicable third-party terms and conditions), (ii) the means by which Customer Data is provided or made available to Rely in connection with the Services, and (iii) the instructions that Customer provides to Rely regarding the collection, accessing, processing, and other actions with respect of Customer Data. Without limiting the foregoing, Customer represents, warrants, and covenants that it has all necessary rights, consents, and authorities to grant Rely access to Customer Data and authorize Rely to collect, access, process and otherwise act with respect of Customer Data as permitted hereunder. Rely is not responsible for verifying the accuracy or completeness of any Customer IP and is also not responsible for any inaccuracies or other errors in the Customer Outputs resulting from any errors in the Customer Inputs or Customer Data.
5.3 Third Party Services. Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Rely is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to use Third Party Services and for Rely to access Third Party Services for the provision and use of the Services, and Customer is solely for complying with any applicable terms or conditions thereof. Rely does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third-party’s terms and conditions.
Fees and Payment.
6.1 Fees. Customer shall pay Rely the fees (“Fees”) as set forth in an Order Form without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in an Order Form. If Customer fails to make any payment when due, without limiting Rely’s other rights and remedies: (i) Rely may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Rely for all costs incurred by Rely in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Rely may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rely’s income.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. If Customer or any of its employees or contractors sends or transmits any communications or materials to Rely suggesting or recommending changes to the Rely IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Rely is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Warranties and Disclaimers.
8.1 Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is a Party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
8.2 Rely. Rely warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the support and professional services under this Agreement in a professional and workmanlike manner.
8.3 Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE RELY IP, SERVICES, AND CUSTOMER OUTPUT ARE PROVIDED “AS IS” AND RELY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RELY 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, RELY MAKES NO WARRANTY OF ANY KIND THAT THE RELY IP, OR ANY SERVICES, OUTPUT 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.
Indemnification.
9.1 Rely Indemnification. Rely shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Rely in writing of the claim, cooperates with Rely, and allows Rely sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Rely, at Rely’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Rely determines that neither alternative is reasonably available, Rely may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9.1 will not apply with respect to portions or components of the Services (a) not created by Rely, including but not limited to Customer IP or Third-Party Products, (b) that are modified by anyone other than Rely where the alleged infringement relates to such modification, (c) combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Rely’s option, defend Rely from and against any Losses resulting from any Third-Party Claim that the Customer Inputs or Customer Data infringes or misappropriates such third party’s intellectual property rights, or any Claims excluded from indemnity obligation in Section 9.1 above, or otherwise from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Rely unless Rely consents to such settlement, and further provided that Rely will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9.3 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND RELY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
. Limitations of Liability.
10.1 Indirect Liabilities. IN NO EVENT WILL RELY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) CUSTOMER BREACH OF ANY AGREEMENTS WITH THIRD PARTIES; OR (F) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RELY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.2 Direct Liability. IN NO EVENT WILL RELY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RELY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT LIMIT RELY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9.1 OR DAMAGES ARISING OUT OF RELY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7.
Term and Termination.
11.1 Term. Service Term, together with the Trial Term are collectively referred to herein as the “Term.”
a) Trial Term. The “Trial Term” shall be as set forth on your Order Form from the Effective Date of this Agreement, unless terminated earlier by either Party upon five (5) days’ notice. Upon the expiration of the Trial Term, this Agreement will automatically continue into the Service Term.
b) Service Term. The initial service term of this Agreement will start on either (i) the date specified in the Order Form or (ii) automatically upon the expiration of the Trial Term and shall continue for one (1) year, subject to early termination as provided herein (the “Initial Service Term”). Following the Initial Service Term, this Agreement will automatically renew for successive renewal terms of one year, subject to early termination (each, a “Renewal Service Term”) unless either Party gives the other Party notice of non-renewal at least ninety (90) days prior to the end of the then-current term. The Initial Service Term and Renewal Service Terms are collectively referred to as the “Service Term.”
11.2 Termination. In addition to any other express termination right set forth in this Agreement: (a) 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: (1) is incapable of cure; or (2) being capable of cure, remains uncured thirty (30) days (or ten (10) days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) 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; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) 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.
11.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Rely IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Rely IP and certify in writing to Rely that the Rely IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
11.4 Survival. Sections 1, 6, 7, 8.3, 9, 10, 11.3, 11.4 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
12.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits and attachments, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
12.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the finder of fact shall modify the offending provision such that such offending provision is valid, legal, and enforceable and in a manner to most closely replicate the Parties’ original intent.
12.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.7 Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.8 Export Regulation. The Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S.
12.9 U.S. Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.
12.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
RELY INTELLIGENCE SERVICE TERMS AND CONDITIONS
Definitions.
1.1 “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder.
1.2 “Customer Input” means information, data, and other content that an Authorized User submits or inputs into the Services in order to be processed by the Services, including prompts used to instruct the Services.
1.3 “Customer Output” means the output generated and returned by the Services to Authorized Users in response to the Customer Input.
1.4 “Customer Data” means information, data or other content that is provided by or on behalf of Customer to Rely or accessed by Rely as authorized or directed by Customer (whether through API or otherwise).
1.5 “Customer IP” means, collectively, Customer Inputs, Customer Outputs, and Customer Data.
1.6 “Documentation” means Rely’s user manuals and guides relating to the Services that Rely makes available to Customer.
1.7 “Initial Service Term” shall have the meaning provided in Section 11 below.
1.8 “Order Form” means the Order Form that Customer completed upon signing up to use the Services, or other similar order form or statement of work entered into by the Parties during the Term of this Agreement.
1.9 “Party” means a reference to Rely and Customer individually, and “Parties” means a reference to Rely and Customer collectively.
1.10 “Rely IP” means the Services, Software (defined below), the Documentation, and any and all intellectual property related thereto, including the platform, the underlying algorithms and source code, and any modifications, changes, or derivative works to or based on any of the foregoing.
1.11 “Renewal Service Term” shall have the meaning provided in Section 11 below.
1.12 “Services” means the software-as-a-service offering and additional related services described in an Order Form, and any and all related maintenance and support. For clarity, the Services do not include Customer IP.
1.13 “Service Term” shall have the meaning provided in Section 11 below.
1.14 “Term” shall have the meaning provided in Section 11 below.
1.15“Trial” shall have the meaning provided in Section 3(c) below.
1.16 “Trial Term” shall mean the length of the Trial as set forth in the Order Form.
Access and Use.
2.1 Provision of Access. Subject to Customer’s full compliance with all terms and conditions of this Agreement, Rely hereby grants Customer a non-exclusive, non-transferable license to access and use the Services during the Term, solely by Authorized Users, for Customer’s internal use and in accordance with the Documentation. Rely may in its sole discretion modify, enhance, or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer hereunder. For the avoidance of doubt, the Parties agree that access and use of the Services are licensed and not sold.
2.2 Use Restrictions. Customer shall not, directly or indirectly: (a) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, language models or other AI models, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (b) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (c) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (d) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (e) remove any product identification, proprietary, copyright or other notices from the Services or Software; (f) use the Services or any Customer Output to develop or train a language model or any other machine learning model, or related products or services (whether competitive with the Services or not), or engage in model extraction or stealing attacks; (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services; (h) create or provide to any third party the results of any benchmark tests or other evaluation of the Services without Rely’s prior written consent; (i) use unauthorized third-party programs (such as “crawlers” or “spiders”) to harvest, scrape, or extract data from the Services; (j) intentionally or knowingly use or otherwise cause the Services to generate or develop infringing or illegal content; (k) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (l) use the Services to develop or create a product or services that are competitive to Rely; or (m) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Rely of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.
Service Levels; Support; Trial Program.
3.1 Service Levels. Subject to the terms and conditions of this Agreement, Rely shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week.
3.2 Support. Subject to the terms and conditions of this Agreement, Rely will provide Customer with the standard support and maintenance services that Rely generally provides to its customers without additional charge from Monday through Friday during Rely’s normal business hours.
3.3 Trial Program. Rely may make available to Customer a trial program as specified in the Order Form for Customer to use the Services solely for Customer’s non-productive evaluation and testing of the Services (the “Trial”) during the Trial Term specified in the Order Form, subject to Customer’s compliance with all its obligations of this Agreement. During the Trial Term, Customer will pay the Trial Fee, if applicable, as specified in the Order Form. Notwithstanding anything else in this Agreement, Customer acknowledges and agrees that (a) the Services under the Trial are provided “AS IS” without warranties of any kind and may not be at the level of performance, functionality, or compatibility of the generally available version of the Services, and (b) Company offers no warranty, indemnity, support or availability commitment for the Trial. Customer agrees to notify Company of any problems or issues with the Services in the Trial.
Intellectual Property Rights and Data.
4.1 Rely IP. As between the Parties, Rely retains all right, title and interest in and to the Rely IP, except for the limited license granted to Customer to access and use the Services in Section 2.1.
4.2 Customer IP. As between the Parties, Customer retains all right, title and interest in and to the Customer IP. Customer grants Rely a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, reproduce, distribute, and make derivative works of Customer IP for the purpose of providing the Services to Customer and perform under this Agreement. Rely may collect, analyze and use Customer IP in a de-identified and aggregated form for any legal business purpose, including for (a) generating aggregated information related to Customer’s and other Rely customers’s use of the Services; (b) analyzing previous and current market conditions; (c) conducting internal research, product development, and improving the Services; and (d) benchmarking. For the avoidance of doubt, Rely may disclose, distribute, or publicly display such de-identified and aggregated Customer IP to other users of the Services as a feature of the Services. In any event, Rely shall not disclose, distribute, or publicly display such de-identified and aggregated Customer IP in any manner that identifies the Customer or any individual user, or where Customer can be reasonably determined as the source of such information.
4.3 Fine-Tuned Model. Rely may use de-identified Customer IP to train any machine learning models for the purpose of fine-tuning the models underlying the Services.
4.4 Usage Data. Rely may collect, retain and use during and after the term of this Agreement, usage data that is derived from the operation of the Services, including patterns identified through the use of the Services and data regarding the performance of the Services (“Usage Data”), which such Usage Data will not contain Customer IP. Rely is free to use Usage Data for any lawful purpose, including to develop and improve the Services.
4.5 Data Protection. Rely will maintain commercially reasonable administrative, physical and technical safeguards for the Services to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer IP properly uploaded to the Services and processed or stored on a computer and/or computer network owned or controlled by Rely in connection with the Services. If, at any time, Rely fails to comply with this Section, Customer may promptly notify Rely in writing of any such noncompliance. Rely will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.
4.6 Reservation of Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Rely IP.
4.7 Publicity. Rely may use Customer’s name and logo to identify Customer as a customer of the Services on Rely’s websites, in marketing materials and in presentations to current and potential investors. Each Party may use the other Party’s name and logo, as well as share general information about the Customer’s use of the Services in case studies, industry presentations, and other publications with the other Party’s consent, such consent shall not unreasonably be withheld. Customer agrees to reasonably cooperate with Rely in these activities.
Customer Responsibilities.
5.1 General. Customer is responsible and liable for all uses of the Services and Customer Outputs, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
5.2 Customer IP. Customer is solely responsible for the accuracy, completeness, quality and legality of (i) the Customer Data and Customer Inputs (including for complying with all applicable laws, rules or regulations and all applicable third-party terms and conditions), (ii) the means by which Customer Data is provided or made available to Rely in connection with the Services, and (iii) the instructions that Customer provides to Rely regarding the collection, accessing, processing, and other actions with respect of Customer Data. Without limiting the foregoing, Customer represents, warrants, and covenants that it has all necessary rights, consents, and authorities to grant Rely access to Customer Data and authorize Rely to collect, access, process and otherwise act with respect of Customer Data as permitted hereunder. Rely is not responsible for verifying the accuracy or completeness of any Customer IP and is also not responsible for any inaccuracies or other errors in the Customer Outputs resulting from any errors in the Customer Inputs or Customer Data.
5.3 Third Party Services. Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Rely is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to use Third Party Services and for Rely to access Third Party Services for the provision and use of the Services, and Customer is solely for complying with any applicable terms or conditions thereof. Rely does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third-party’s terms and conditions.
Fees and Payment.
6.1 Fees. Customer shall pay Rely the fees (“Fees”) as set forth in an Order Form without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in an Order Form. If Customer fails to make any payment when due, without limiting Rely’s other rights and remedies: (i) Rely may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Rely for all costs incurred by Rely in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Rely may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Rely’s income.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. If Customer or any of its employees or contractors sends or transmits any communications or materials to Rely suggesting or recommending changes to the Rely IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Rely is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Warranties and Disclaimers.
8.1 Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is a Party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
8.2 Rely. Rely warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the support and professional services under this Agreement in a professional and workmanlike manner.
8.3 Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE RELY IP, SERVICES, AND CUSTOMER OUTPUT ARE PROVIDED “AS IS” AND RELY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RELY 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, RELY MAKES NO WARRANTY OF ANY KIND THAT THE RELY IP, OR ANY SERVICES, OUTPUT 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.
Indemnification.
9.1 Rely Indemnification. Rely shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Rely in writing of the claim, cooperates with Rely, and allows Rely sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Rely, at Rely’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Rely determines that neither alternative is reasonably available, Rely may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9.1 will not apply with respect to portions or components of the Services (a) not created by Rely, including but not limited to Customer IP or Third-Party Products, (b) that are modified by anyone other than Rely where the alleged infringement relates to such modification, (c) combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Rely’s option, defend Rely from and against any Losses resulting from any Third-Party Claim that the Customer Inputs or Customer Data infringes or misappropriates such third party’s intellectual property rights, or any Claims excluded from indemnity obligation in Section 9.1 above, or otherwise from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Rely unless Rely consents to such settlement, and further provided that Rely will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9.3 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND RELY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
. Limitations of Liability.
10.1 Indirect Liabilities. IN NO EVENT WILL RELY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) CUSTOMER BREACH OF ANY AGREEMENTS WITH THIRD PARTIES; OR (F) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RELY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.2 Direct Liability. IN NO EVENT WILL RELY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RELY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT LIMIT RELY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9.1 OR DAMAGES ARISING OUT OF RELY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7.
Term and Termination.
11.1 Term. Service Term, together with the Trial Term are collectively referred to herein as the “Term.”
a) Trial Term. The “Trial Term” shall be as set forth on your Order Form from the Effective Date of this Agreement, unless terminated earlier by either Party upon five (5) days’ notice. Upon the expiration of the Trial Term, this Agreement will automatically continue into the Service Term.
b) Service Term. The initial service term of this Agreement will start on either (i) the date specified in the Order Form or (ii) automatically upon the expiration of the Trial Term and shall continue for one (1) year, subject to early termination as provided herein (the “Initial Service Term”). Following the Initial Service Term, this Agreement will automatically renew for successive renewal terms of one year, subject to early termination (each, a “Renewal Service Term”) unless either Party gives the other Party notice of non-renewal at least ninety (90) days prior to the end of the then-current term. The Initial Service Term and Renewal Service Terms are collectively referred to as the “Service Term.”
11.2 Termination. In addition to any other express termination right set forth in this Agreement: (a) 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: (1) is incapable of cure; or (2) being capable of cure, remains uncured thirty (30) days (or ten (10) days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) 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; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) 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.
11.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Rely IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Rely IP and certify in writing to Rely that the Rely IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
11.4 Survival. Sections 1, 6, 7, 8.3, 9, 10, 11.3, 11.4 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
12.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits and attachments, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
12.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the finder of fact shall modify the offending provision such that such offending provision is valid, legal, and enforceable and in a manner to most closely replicate the Parties’ original intent.
12.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.7 Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.8 Export Regulation. The Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S.
12.9 U.S. Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.
12.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.