Saifr Commercial Marketplace End User License Agreement

The Saifr Commercial Marketplace End User License Agreement (“EULA”) is a contract between You, or, if You are entering this EULA on behalf of another person or entity, such person or entity (“You” or “Client”) and Fidelity Labs LLC (“Saifr”). The EULA governs Your access to and use of the Offering made available by Saifr^SM. Saifr^SM is a standalone brand representing a subset of services provided by Fidelity Labs LLC. Saifr and Client are each herein referred to as a “Party” and collectively as the “Parties.”

Please read this EULA and all Saifr’s rules, regulations and policies related to Your access to and use of the Offering (collectively, the “Agreement”) carefully before You access or use the Offering, as you will be bound by them. If You do not or cannot agree to the terms of the Agreement, do not attempt to access, download or use the Offering.

BY CLICKING “AGREE” OR “ACCEPT” OR BY OTHERWISE DOWNLOADING, INSTALLING, USING, OR DISTRIBUTING ANY PORTION OR ELEMENT OF THE OFFERING, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE AND HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ITS TERMS AND WILL BE BOUND BY IT.

1. Right to Use the Offering.
   • Your Right to Use the Offering. Subject to Your compliance with all the Agreement’s terms, Saifr grants You, the limited, personal, revocable, non-exclusive, and non-transferable right to access and use the Offering during the License Term, for Your internal business purposes, and only for the number of seats or authorizations You purchase. If Saifr separately authorizes you to download or install the Saifr Software, it must be downloaded and installed on a single device owned or otherwise controlled by You and used strictly in accordance with the Agreement, the Offering Materials, and instructions provided to You by Saifr. You may designate Your and Your Affiliates’ employees, representatives, and agents as authorized users (collectively, “Authorized Users”) who can access and use the Offering. The number of Authorized Users must not exceed the number of seats or authorizations You purchase from Saifr. You are responsible for (a) any access and use of the Offerings by Authorized Users that does not comply with the terms of this Agreement, (b) ensuring that Authorized Users possess the knowledge, skill, experience, certifications, and other qualifications to perform on Your behalf their roles relating to the Offering, and (c) any access to or use of the Offering by anyone using Your or Your Authorized Users’ credentials. Access and use of components of the Offering subject to open-source software licenses requires You to agree to the terms of applicable open-source licenses governing such use, which are hereby incorporated by reference. You may not access or use the Offering outside the United States or transmit, transfer or store Offering Materials in non-U.S. locations.
   • Duration of Use (“License Term”). Licenses granted on a subscription basis continue as long as the Agreement is in effect (subject to Your compliance therewith) and expire at the end of the applicable subscription period set forth in the ordering document, unless renewed. Licenses granted on a usage basis – where metering and billing is periodic based on Your usage – continue as long as the Agreement is in effect (subject to Your compliance therewith), provided You continue to pay for Your usage of the Offering.
   • Prohibited Uses and Activities.
     • You and Your Authorized Users must not use the Offering: (a) other than as permitted in this Agreement, and more particularly Section 1.1 (Right to Use) above; (b) with personal or sensitive information that may be subject to, or that may impose on Saifr or its Affiliates, any laws, obligations, or industry standards not described in this Agreement; (c) for a purpose or with information that is, unlawful, harmful, obscene, offensive, false, or fraudulent, or that violates a third party’s rights (including third-party terms of use); or (d) for a purpose or with activities that could lead to emotional or mental distress, death, bodily injury, damage to personal property, or environmental damage. Some examples of prohibited activities include use of the Offering with personal health data, credit card data or personal financial data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, the Payment Card Industry Data Security Standards, and other similar consumer, data security and data privacy laws and industry standards, in each case except as specifically provided in an applicable ordering document or permitted elsewhere in the Agreement (e.g. use with Restricted Information); advocating or causing harm, interfering with or violating the integrity or security of a network or system; evading filters, or violating third-party rights; and processing or disclosing to Saifr trade secrets or protected information without permission or a valid license from the owner.
     • You and Your Authorized Users must also not, and must not permit others to, do any of the following: (a) decompile, decode, disassemble, or otherwise reverse engineer any portion of the Offering; (b) combine a component of, or the results or output from, the Offering with your contributions, materials, or other intellectual property, to create a solution that You or Your Affiliates market to customers or otherwise use to compete with any Saifr offerings; (c) sublicense, sell, rent, lease, provide service bureau or timeshare services, transfer, assign, transmit, distribute, retransmit, publish, or otherwise commercially exploit the Offering, any component thereof, or any licenses granted under this Agreement; (d) copy, replicate, modify, enhance, co-brand, create derivative works of, combine with other programs, or otherwise change the Offering; (e) develop methods to enable unauthorized parties to use the Offering or otherwise provide access to the Offering by framing the Offering in a domain not supported by Saifr; (f) screen scrape, screen surf, or employ any other data scraping method; (g) develop or have developed any product or service (including any datafile or database) using or based on any component of the Offering (including code, screen layout, content, or methodologies) or any data contained therein; (h) knowingly interfere with or disrupt delivery or performance of the Offering; (i) scan, test, or probe the Offering; (j) exceed authorized usage limits; (k) install or use any third-party software or technology in any way that would subject Saifr’s intellectual property or technology to any other license terms; or (l) insert or allow to be inserted into the Offering, or systems used to provide the Offering, any code or other device that (1) is designed to disable, damage, erase, delay or otherwise shut down all or any portion of the Offering or the hardware, software, systems or data used in providing the Offering, (2) can remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Offering or (3) permits any person to otherwise circumvent the normal security of the Offering or any systems used to deliver the Offering.
     • A violation of this Prohibited Uses and Activities Section is a material breach.
   • Saifr’s Reservation of Rights. The Offering is provided to You and Your Authorized Users under license and is not being sold. You will not acquire any ownership interest in the Offering, any component thereof, or any other rights related thereto other than to use the Offering in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. No rights are granted or implied by waiver, estoppel, or otherwise. Rights to access or use the Offering on a device do not give You any right to implement Saifr’s patents or other intellectual property in the device itself or in any other software or devices. The Offering is protected by copyright and other intellectual property laws and international treaties. Saifr reserves all rights not expressly granted in this Agreement.
   • Changes to the Offering. Saifr may from time to time in its sole discretion improve, update or change the Offering, for example, through software updates, upgrades, bug fixes, patches, other error corrections, and new features, (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features or functionality. You agree that Saifr has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality, and Your placing of new orders after the Update becomes effective, continuing to use the Offering, or allowing transactions to renew, is acceptance of the Updates.  
   • Saifr is responsible for providing the Offering using commercially reasonable care and skill in accordance with standard industry practices and as described in applicable Offering Materials. General inquiries and support requests may be directed to Saifr at getsupport@saifr.ai or 800-973-0776.
2. Rights to Use Client Data.
   • Saifr’s Use. You grant to Saifr, its Affiliates, and subcontractors of either, the rights and permissions to, without charge, (a) access, use, copy, modify, transfer, store, and otherwise process Client Data (i) as necessary to provide, support and manage the Offering, including to manage Saifr’s relationship with You, or (ii) as otherwise authorized under the Agreement or required by Applicable Law or legal process; and (b) use the results and output from Your use of the Offering, including from a review of system output and Deliverables, to modify and improve the Offering, provided that in doing so, Your identity and the source of such results or output is not disclosed or identifiable, and Your authorization has not been withdrawn. Saifr must not use Client Data except as permitted under this Agreement.
   • Feedback. Any Feedback You give is voluntary. By giving Feedback, You grant to Saifr, without charge, a non-exclusive license under Your owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of Saifr’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by You as confidential. You retain all other rights in any Feedback You give, and hereby limit the rights granted under this section to licenses under Your owned or controlled non-patent intellectual property (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, such Feedback, such as enabling technologies).
3. Client Responsibilities.
   • Legal, Regulatory and Other Client Responsibilities. The Offering is intended to aid You and Your Authorized Users in the performance of some of Your legal, regulatory and business obligations, for example, the review of marketing communications and customer diligence; but, the Offering is not intended to (a) replace any legal, compliance, business, or other functions, including functions that ordinarily review communications and alerts, or (b) satisfy any of Your legal or regulatory obligations, including those regarding the submission of communications to regulators or the storage or retention of Client Data. You acknowledge that You alone remain responsible for ensuring that You comply with those obligations, including with respect to the tasks that You or Your Authorized Users use the Offerings to assist with. You are solely responsible for (i) Your compliance with Applicable Laws and industry regulations, including for determining that Client Data and Your use of the Offering complies with such laws and regulations, (ii) ensuring the Offering’s results and any Deliverables are appropriate for Your intended use, and (iii) ensuring that regulatory filing and retention requirements with respect to Client Data, Offering results, Deliverables, and any other materials are met.
   • Third-Party Platforms and External Resources.
     • Certain components of the Offering may be licensed to You for use through a third party’s distribution and hosting platform (“Third-Party Platform”), such as those provided by Commercial Marketplace owners and their Affiliates (“Third-Party Hosts”). If separately authorized, components of the Offering may also be deployed and operated within Your third-party hosted cloud environment; and the Offering may also support Your use through a third party’s (or Your) hardware, software, systems, telecommunications infrastructure, applications, plugins, add-ins, products and services (“Third-Party Systems”). You are responsible for providing the Third-Party Platforms and Third-Party Systems that You need to access, use, or facilitate use of the Offering, in each case, including those items that the Offering is intended to operate with (collectively, “Client Resources”). You must secure on Your own the appropriate intellectual property rights and licenses to use Client Resources, and You (not Saifr) are responsible for (a) verifying that Client Resources meet Your data security, data retention, data backup and other business requirements, including requirements under Applicable Law, and (b) ensuring that Client Resources operate properly to enable You to receive and use the Offering.
     • Your access to or use of the Offering is consent for Saifr to provide the Offering to You through, exchange Client Data and Your information with, and disclose Client Confidential Information to, the Client Resources and their respective providers. Your written agreements with such providers (including their terms of use, privacy policies and guidelines, such as those relating to content and prohibited activities) govern Your use of Client Resources and the providers’ responsibilities to You, if any. You must comply with those agreements when using the Offering.
     • Saifr cannot and does not make any representations, warranties or commitments regarding the performance, operation, security, integrity, or any other aspect of the Client Resources, including with respect to the processing or storage of Client Data transmitted to/from, or contained within, the Client Resources.  
   • Data Use Authorization. You are responsible for obtaining the necessary rights, consents and permissions to allow Saifr to use and process Client Data as contemplated under this Agreement. You represent and warrant that You have lawfully obtained all the appropriate rights to permit such use and processing by Saifr and its Affiliates, and their respective agents and subcontractors. In addition, You represent and warrant that You have issued all notices and secured all authorizations necessary for Saifr and its Affiliates, and their respective agents and subcontractors, to use, process and disclose all Restricted Information You provide Saifr or that Saifr obtains on Your behalf as contemplated in this Agreement. If requested by Saifr, You must provide copies or other appropriate evidence of these notices and authorizations. You hereby consent to the use, processing and third-party disclosure of all Restricted Information You provide Saifr or that Saifr obtains on Your behalf hereunder. You alone remain responsible for determining the necessary data security, data retention, data backup and other business, legal or regulatory requirements that apply to Restricted Information and other Client Data, and You are solely responsible for verifying that Your access to and use of the Offering meets those requirements.
   • Third-Party Content in the Offering. The Offering may display, include, or make available third-party content (including data, information, software, and other products, services, and/or materials) or provide links to third-party websites and services (“Third-Party Content”). You acknowledge and agree that Saifr is not responsible for Third-Party Content, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Saifr does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Content. Third-Party Content and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
4. Ownership Rights
   • Saifr’s Ownership of Offering. As between You and Saifr, Saifr (and its Affiliates and licensors) solely and exclusively own and always retain, all rights, title and interest in the Offering (excluding any Client Data that may be embedded or incorporated therein), including all patents, copyrights, trademarks, and other intellectual property rights applicable thereto, and any derivative works, translations, customized versions, or other forms thereof.
   • Client’s Ownership of Client Data. You (and Your Affiliates and licensors) solely and exclusively own and always retain, all rights, title and interest in Client Data. Any use of Client Data with the Offering or inclusion of any excerpts from Client Data in any Offering Materials does not affect Client’s ownership or license rights in Client Data.
   • AI Generated Information. Where copyright ownership by AI Tools is not permitted under Applicable Laws, either Party may use AI Generated Information at its own risk and discretion, provided that in doing so it does not use or disclose the other Party’s Confidential Information in violation of this Agreement.
5. Confidentiality
   • You and Saifr each (as a “Discloser”) may provide to the other (as a “Recipient”) certain confidential and proprietary technical and business information that the Discloser wishes to be treated as confidential (“Confidential Information”). Confidential Information includes any information the Discloser identifies as confidential at the time of disclosure or that the Recipient knows or should reasonably know is confidential, in each case whether disclosed orally, in writing, or in any other manner. Additionally, Saifr’s Confidential Information includes, but is not limited to, each of the following that Saifr may provide access to relating to Saifr, its Affiliates, or the Offering: source code and executable or machine code, user documents and technical materials, product lists, pricing information, model information and architecture, marketing materials, presentations, product demonstrations and the Agreement. Your Confidential Information includes business, sales, marketing and customer information that You provide to Saifr.
   • The Recipient must maintain the confidentiality of the Discloser’s Confidential Information using at least the degree of care it uses to maintain the confidentiality of its own confidential information of a similar nature. The Recipient may use and disclose relevant aspects of the Discloser’s Confidential Information to Recipient’s Affiliates and its and its Affiliates’ employees, subcontractors, advisors, agents, and permissible assigns, in each case, only to the extent reasonably necessary to perform its obligations, maintain or improve the Offering, or enforce its rights under the Agreement; and provided the Recipient (a) has enforceable agreements with such persons requiring them to maintain the confidentiality of such information and (b) shall be responsible if they fail to do so. Except as otherwise permitted under the Agreement, the Recipient shall not use or disclose the Discloser’s Confidential Information to any third party.
   • Information is not Confidential Information of the Discloser if it: (a) is or becomes publicly available other than through wrongful acts or omissions of the Recipient; (b) is already known by the Recipient at the time of disclosure; (c) is disclosed in good faith to the Recipient on a non-confidential basis by a third party having a lawful right to do so; or (d) is independently developed by the Recipient or its Affiliates without reference to or use of the Discloser’s Confidential Information.
   • If the Recipient is required to disclose any portion of the Discloser’s Confidential Information pursuant to a subpoena, summons, order, or other judicial, regulatory, or Governmental process, the Recipient must use commercially reasonable efforts to promptly notify the Discloser so the Discloser may take such action as it considers appropriate, and shall thereafter disclose only the minimum portion of the Discloser’s Confidential Information that is required to be disclosed in order to comply with the request, whether or not a protective order or other order has been obtained.
   • Saifr may identify Client by name or logo or both in Saifr’s (or its Affiliates’) annual report, customer lists, and print, electronic, or online marketing materials. Otherwise, all advertising, press releases, public announcements, and public disclosures by either Party relating to the Agreement that include the other Party’s or its Affiliate’s name or language from which such name may be inferred, and all other use of the other Party’s or its Affiliate’s trade name, trademark, service mark, design, or logo will be coordinated with and subject to approval of both Parties prior to release or use, provided either Party may make disclosures as required under or permitted by Applicable Law, subject to the confidentiality obligations in the Agreement.
   • Saifr will take commercially reasonable data security measures in accordance with good industry practice. You must also use commercially reasonable safeguards to ensure any information and Client Data transferred to Saifr is free of malware, viruses, and unauthorized or harmful code. You are solely responsible for verifying that Your access to or use of the Offering meets Your data security and data protection requirements.
6. Verifying Compliance. You must keep adequate books and records to show Your and Your Authorized Users’ compliance with this Agreement. Saifr may verify compliance by requiring You to perform a self-audit and certify to such compliance, or by itself conducting an audit of such books and records (or directing an independent auditor to conduct such audit under non-disclosure obligations). You must reasonably cooperate with the verification process and promptly provide relevant information, documents and access to systems running the Offerings, that Saifr or the auditor may reasonably requests or require in connection with the verification. Verification performed by Saifr or an independent auditor shall be conducted at Saifr’s expense, unless it is initiated as the result of suspected material non-compliance, or it reveals You have materially breached Your obligations hereunder, in which case You must promptly reimburse Saifr for its reasonable expenses incurred in connection with such verification. Verification shall be conducted once a calendar year, but may be conducted more frequently, if required by Saifr’s auditors and/or regulators. If verification or self-audit reveals You have exceeded Your authorized use limits, that is, the number of seats or queries You purchase, You must within 15 days purchase additional authorizations sufficient to cover the period of such excess use. Your information provided during the verification process is subject to the confidentiality protections outlined in this Agreement and will be used solely to verify compliance. You must promptly report to Saifr any actual or reasonably suspected violation of Section 1.3 (Prohibited Uses and Activities) or Applicable Law. In addition, You must promptly take such actions as are necessary, and/or reasonably required by Saifr, to remedy any actual violations of Section 1.3 (Prohibited Uses and Activities) or Applicable Law.

7. Warranties & Disclaimers.
   • Mutual Warranties. Each Party warrants that (a) it has been duly incorporated or organized and is validly existing as a legal entity under the laws of its state of incorporation or organization, (b) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder (c) this Agreement constitutes legal, valid, binding and enforceable obligations of such Party, and (d) there are no material consents, approvals, authorizations, orders or notifications of, or declarations or filings with, any Governmental, judicial or self-regulatory authority or organization, or material consents, approvals, authorizations or notifications of any third party, or any other proceedings that are required in connection with the valid execution, delivery and performance of the Agreement or the related agreements by such Party, except as have been obtained or made prior to the date hereof or as are contemplated by the Agreement. If You are an individual executing this Agreement on behalf of another person or entity, You represent and warrant that You have the authority to accept this Agreement and bind such person or entity to its terms.
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   • Saifr Warranties. Saifr warrants that it provides the Offering using commercially reasonable care and skill in accordance with standard industry practices.
   • Client warranties. Client warrants that (a) it is not a Governmental Authority, (b) it is not acquiring the license or authorizations hereunder pursuant to a Governmental contract, with Government funds, or for any Governmental Authority, and (c) its entering into and performance of this Agreement does not and will not violate, conflict with, or result in a material default under any Governmental or other third party contract. Alternatively, if Client is a Governmental Authority, or is acquiring the license or authorizations hereunder pursuant to a Governmental contract, with Government funds, or for any Governmental Authority, Client represents and warrants that: (i) it has complied and will comply with all applicable Government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.
   • Without negating the warranties provided by Saifr in Section 7.2 (Saifr Warranties), Saifr does not warrant (a) the uninterrupted or error-free availability or operation of the Offering, or that it will correct all defects in the Offering; (b) that the Offering or any component thereof is either fit for any particular purpose, or going to satisfy any of Client’s obligations under laws or industry rules applicable to Client’s business or Client Data; (c) that the Offering will identify or help mitigate all, relevant, or even actionable instances of potential non-compliance, violations, or risks related to the Client’s business; or (d) that Saifr can prevent all unauthorized third-party access or third-party disruptions. Saifr warranties will not apply if there has been misuse, modification, damage not caused by Saifr, or failure to comply with written instructions provided by Saifr. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 (WARRANTIES & DISCLAIMERS), SAIFR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, AND ANY WARRANTIES BY DESCRIPTION, REPRESENTATION, OR OTHER AFFIRMATION OF FACT, SAMPLE, OR ILLUSTRATION, OR THAT ARISE OUT OF CUSTOM, DEALING, TRADE, OR USAGE, WHETHER ORAL, WRITTEN, OR CONTAINED IN ANY LETTER, BROCHURE, WEBSITE, PHOTOGRAPH, OR OTHER MEDIUM. SAIFR DOES NOT REPRESENT OR WARRANT THAT THE OFFERING OR ANY SERVICE INTEGRATED INTO A THIRD-PARTY PLATFORM WILL FUNCTION FOR ITS INTENDED PURPOSES, MEET CLIENT’S NEEDS, OR ELIMINATE, PREVENT, OR MITIGATE REGULATORY NONCOMPLIANCE, HARM OR DAMAGE. The disclaimers in the Agreement also apply to Saifr’s Affiliates and Saifr’s and its Affiliates’ personnel, licensors, subcontractors, and distributors.
   • Performance Benchmarks. Performance benchmarks may be published or provided to You and are for informational purposes only. Performance benchmarks do not always reflect performance of the Offering as used with Client Resources and do not serve as a guarantee of similar results. Actual performance of the Offering may vary from the published benchmark performance due to many factors and variables outside of Saifr’s reasonable control. You are responsible for assessing the suitability of the Offering for Your needs and Saifr makes no representations or warranties, express or implied, regarding the efficiency or effectiveness of the Offering, or the accuracy, reliability, or completeness of any Deliverables, or any other results or output from the Offering.
   • Third-Party Platforms and Systems. Saifr has no responsibility for Third-Party Platforms, Third-Party Systems, or the actions of a Third-Party Host. Third-Party Hosts and Third-Party Systems providers operate independently from Saifr, and have no agency, partnership, joint venture, or other legal relationship with Saifr that would permit them to undertake obligations on behalf of Saifr. Third Party Hosts and Third-Party Systems providers may also operate independently of each other. No Third-Party Host, Third-Party Systems provider, or other third-party is authorized to bind, or make any warranties, representations, or commitments on behalf of Saifr, or that relate to the Offering in any manner.
8. Payment and Taxes
   • • Subscription-Based Clients. You must pay all Saifr charges via Automated Clearing House (“ACH”), or by such other method specified by Saifr at the time of Your order. Saifr invoices for periodic subscriptions are due and payable immediately upon submission of Your order or as otherwise set forth in the applicable invoice.
     • Usage-Based Clients. Where metering and billing is periodic based on Your usage, the Third-Party Host will invoice and charge You under the terms of Your agreement with the Third-Party Host and the applicable ordering document.
     • Failure to pay is a material breach.
   • Unless Saifr is required to do so by Applicable Law, You will be responsible for paying and remitting all taxes, duties, and similar levies (plus interest and penalties) arising from, assessed, claimed, or imposed on the Agreement or transactions under it. Such amounts are not included in the charges and may be invoiced separately where Saifr has the legal obligation to make collection. If You are required by Applicable Law to withhold or deduct any amounts from the subscription fees You pay, You must increase the amount payable to Saifr to the extent necessary so that the amount receivable after such withholding or deduction is equal to the amount which would have been receivable had no such withholding or deduction been made. You agree to indemnify and hold Saifr harmless for any claims, liability, or expenses arising from Your failure to pay any applicable taxes arising from, assessed, claimed, or imposed on the Agreement or transactions under it.
9. Limits of Liability.
   • General Limits and Exclusions. Saifr’s entire potential liability for all claims in the aggregate related to the Agreement will not exceed the amount of any actual direct damages You incur, up to the amount You paid for the Offering that is the subject of the claim during the 12 months preceding the first claim to arise, regardless of the basis of the claim. The foregoing limitation on the amount of damages does not apply to (a) Saifr’s third-party defense and payment obligations referred to in Section 10 (Defense of Third-party Claims) and (b) damages that cannot be disclaimed or limited under Applicable Laws. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF SAIFR, ITS AFFILIATES, ITS OR ITS AFFILIATES’ PERSONNEL, LICENSORS, OR SUBCONTRACTORS ARE RESPONSIBLE OR LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT, OR ECONOMIC CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, BUSINESS, VALUE, REVENUE, OR GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF SAIFR IS AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
   • No Liability for Client’s Legal, Regulatory or Other Responsibilities. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF SAIFR, ITS AFFILIATES, ITS OR ITS AFFILIATES’ PERSONNEL, LICENSORS, OR SUBCONTRACTORS ARE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF: (A) CLIENT’S FAILURE TO COMPLY WITH THIS AGREEMENT, CLIENT’S LEGAL OR REGULATORY OBLIGATIONS, OR THE REQUIREMENTS OF APPLICABLE LAW OR INDUSTRY RULES; (B) CLIENT’S INFORMATION, INCLUDING CLIENT DATA, CLIENT COMMUNICATIONS, INPUTS, AND MATERIALS; (C) LOSS OF CLIENT DATA OR FAILURE TO RETAIN OR BACKUP CLIENT DATA, (D) USE OF CLIENT RESOURCES BY CLIENT, SAIFR OR THEIR AFFILIATES TO FACILITATE CLIENT’S ACCESS AND USE OF THE OFFERING; (E) INACCURACIES IN, OR CLIENT’S USE OF, OR RELIANCE ON, THE DELIVERABLES, THE OFFERING MATERIALS, OR ANY OTHER RESULTS OR OUTPUT FROM THE OFFERING, OR (F) ACTIONS OR OMISSIONS OF THIRD PARTIES, INCLUDING THIRD-PARTY HOST AND THIRD-PARTY SYSTEMS PROVIDERS. FOR CLARITY, THE FOREGOING DOES NOT NEGATE OBLIGATIONS EXPRESSLY UNDERTAKEN BY SAIFR ELSEWHERE IN THE AGREEMENT, FOR EXAMPLE, WITH RESPECT TO THE CONFIDENTIALITY AND THE AUTHORIZED USE OF CLIENT DATA.
10. Defense of Third-party Claims.
    • Saifr’s Obligations. If a third party asserts a claim against You that the Saifr Software or Services provided by Saifr infringes or misappropriates that party’s U.S. patent, copyright, or trademark, Saifr will defend You against that claim and pay amounts finally awarded by a court against You or included in a settlement approved by Saifr, in resolution of such claim; provided, however, that Saifr shall have no liability if the claim against You arises from or is based on: (a) Your or a third-party’s modification of the Offering; (b) Client Resources or any other third-party products, materials, technology, systems or services not controlled by Saifr, or their combination or use with the Offering; (c) Client Data, or its combination or use with the Offering; (d) Saifr’s compliance with designs or specifications You or a third party provides to facilitate Your access and use of the Offering; (e) Your use of AI Generated Information; (f) Your violations of, the Agreement, any law, or third-party rights or licenses; (g) Your failure to comply with open source or other license terms applicable to the Offering, (h) Your use of a non-current version of the Offering after Saifr has made a more current version available; or (i) Your or Your Affiliates’ gross negligence or willful misconduct. For any component of the Offering that becomes the subject of a claim of infringement covered by Saifr’s defense and payment obligation above, Saifr, will, at its option: (1) modify or replace the affected portion of the Offering to make it non-infringing; (2) obtain the right for Client to continue using the infringing portion of the Offering; or (3) terminate Client’s use of such component and refund any amounts Client prepaid for access to the Offering that remain unused for periods following such termination. Saifr’s responsibilities under this Section 10.1 (Saifr’s Obligations) are the entire obligation of, and the Client’s exclusive remedy against, Saifr, its Affiliates and its and its Affiliates’ personnel, licensors, and subcontractors regarding any claim of intellectual property infringement relating to the Agreement or the Offering.
    • Client’s Obligations. You must indemnify, defend, and hold harmless Saifr, its Affiliates, and its and their officers, directors, employees, agents, Affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) Client Data or the use of Client Data by Client or anyone authorized by Client, including use by Saifr or its Affiliates to perform Saifr’s obligations under the Agreement; (b) Your and Saifr’s use of Client Resources, including any loss or damage arising from Your misuse of, or unauthorized access to, Client Resources and any violations of the third-party providers’ terms; (c) Your breach of this Agreement; (d) Your unauthorized access or use of the Offering, and (e) the unauthorized access or use of the Offering by anyone You allow to do so, or who uses Your access credentials.
    • Notice and Cooperation. To obtain the other Party’s defense against and payment of claims under this Section, the recipient of the claim (the “Indemnified Party”) must: (a) promptly notify the Party from whom defense or payment is sought (the “Indemnifying Party”) of the claim in writing; (b) supply information reasonably requested by the Indemnifying Party; (c) allow the Indemnifying Party the right to assume exclusive defense and control of the claim; and (d) reasonably cooperate in mitigation, defense and settlement efforts. The Indemnified Party is always free to choose its own counsel if it pays for the cost of such counsel. The Indemnifying Party cannot settle any action without the Indemnified Party’s written consent (such consent not to be unreasonably withheld, conditioned or delayed) if: (1) the settlement requires an admission by, or imposes any liability or obligation on, the Indemnified Party or its Affiliates, or (2) the claim is being asserted by a Governmental Authority.
11. Term and Termination
    • Term. The term of Agreement (the “Term”) commences when You click the “agree” or “accept” button, or when You otherwise access, download, install, use or distribute any portion or element of the Offering, and will continue until the date on which termination takes effect (the “Termination Date”) as set forth below.
    • Termination for convenience.
      • Subscription-Based Clients. Either Party may terminate this Agreement for convenience on 60 days’ prior notice to the other. Termination takes effect at the end of the then-current subscription term.
      • Usage-Based Clients. Either Party may terminate this Agreement for convenience at any time by delivering prior notice to the other. Termination takes effect at the end of the then-current billing cycle.
    • Termination for breach or insolvency. Either Party may terminate this Agreement at any time, with immediate effect, by delivering notice to the other if (a) the other is in material breach of the Agreement, provided the one who is not complying is given a reasonable time to comply; or (b) the other (i) becomes or is declared insolvent, (ii) is the subject of any liquidation or insolvency proceedings or the appointment of a receiver or similar officer for such Party, (iii) makes an assignment for the benefit of all or substantially all of its creditors, (iv) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its debts or obligations, or (v) files a voluntary bankruptcy petition or has an involuntary bankruptcy petition filed against it that is not dismissed within 60 days of its filing.
    • Other Termination Rights. Saifr may terminate this Agreement at any time, with immediate effect, by delivering prior notice to You if it will cease to support the Saifr Software or any component of the Offering, which Saifr may do in its sole discretion. You may terminate this Agreement on 30 days’ notice if: (i) in the opinion of Your legal counsel, a change to the Offering or Applicable Law will cause Your material noncompliance with the Agreement (or Applicable Law); or (ii) a change to the Offering has a material adverse effect on Your use of the Offering, provided that in either case Saifr may defer the termination for a reasonable time to work with You to minimize such effect.
    • Effect of Termination.
      • Upon termination for any reason, including but not limited to expiration or nonrenewal, or termination for cause or convenience, all licenses and other rights granted to You under this Agreement also automatically terminate (on the Termination Date). You must (and must ensure the same for all Authorized Users) cease all use of the Offering and immediately delete or return all copies of the Saifr Software and Offering Materials. For clarity, termination does not affect Your fully paid perpetual licenses if any, and licenses granted to You on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.
      • All fees accrued prior to the Termination Date, and any amounts due or invoices that are unpaid will become immediately due and payable on the Termination Date. Unpaid usage-based charges are also immediately due as of the Termination Date. Where termination is due to (a) Saifr’s material breach or insolvency as described in Section 11.3 (Termination for breach or insolvency), (b) a change in law as described in Section 11.4 (Other Termination Rights), or (c) a component of the Offering becoming the subject of an infringement claim as described in Section 10.1 (Saifr’s Obligations), Client will receive a prorated credit against any amounts due to Saifr as of the Termination Date (and Saifr will issue a prorated refund from any prepaid fees and charges actually received by Saifr) with respect to periods following the Termination Date. Saifr does not give credits or refunds for any prepaid or other charges already due or paid, except as provided in this Section. Agreement.
      • Termination does not limit any of Saifr’s rights or remedies at law or in equity; and any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees. Saifr may assist You in transitioning Client Data to an alternative technology for an additional charge and under separately agreed terms.
    • Suspension of a Saifr Software License or a Saifr Service. To address security concerns, Saifr may temporarily modify or discontinue the Offering or block data or communications transmitted electronically that are inadequately secured or where it is not administratively feasible to use the data security provided. Additionally, Saifr may suspend or limit, to the extent it reasonably deems necessary, Your use of the Offering if Saifr reasonably determines there is likely to be or has been a: (i) material breach of Your obligations under the Agreement; (ii) security breach; or (iii) violation of law. Saifr will promptly notify You of any such suspension, modification or limitation to Your access. If the cause of a suspension can reasonably be remedied, Saifr will inform You of the actions You must take to reinstate access to the Offering. If You fail to take such actions within a reasonable time, Saifr may terminate Your license to the Offering without liability.
12. Miscellaneous
    • Entire Agreement; Amendments. The Agreement supersedes any course of dealing, discussions, agreements, or representations between the Parties with respect to the matters described herein. Saifr may update this Agreement at any time and will notify You of such changes in the Customer Resource Center, or through updated terms made available at https://saifr.ai/microsoft-marketplace-end-user-license-agreement or in the Third-Party Platform. Saifr may update the Agreement without notice if reasonably necessary to comply with Applicable Law or industry regulations. By continuing to use or access the Offering after the changes become effective, You agree to the new terms and will be bound by the Agreement, as it is current at the time of such access or use.
    • Order of Precedence; Non-Exclusivity. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an updated agreement control over the Agreement and any prior amendments concerning the same subject matter. You are free to enter into agreements to license, use, and promote the services of others if it does not violate your obligations under this Agreement.
    • Choice of Law. The validity and interpretation of the Agreement, together with all other rights, claims and obligations that may arise out of the Agreement (including consumer protection, unfair competition, and tort claims) will be governed and construed under the laws of Massachusetts, without regard to its conflicts-of-laws or choice-of-law provisions, to the extent such laws are not preempted by federal law. The parties agree that the Agreement (a) does not involve the sale of goods and is not subject to Article 2 of the Uniform Commercial Code or the United Nations Convention on Contracts for the International Sale of Goods and (b) is not subject to the Uniform Computer Information Transactions Act.
    • Saifr’s Role. Saifr is an independent contractor, not Client’s agent, joint venturer, partner, or fiduciary. Saifr and its Affiliates are acting as information technology licensors and providers only, and neither Saifr nor any of its Affiliates perform any of Client’s regulatory obligations or assume any responsibility for Client’s business or operations. Each Party is responsible for determining the assignment of its and its Affiliates’ personnel, and their respective subcontractors, and for their direction, control, and compensation. Saifr and its Affiliates are free to provide the Offering and similar software or services to others and to use their general knowledge, skills, experience, and any ideas, concepts, know-how and techniques that are gained or improved in providing the Offering.
    • General Compliance with Laws. In connection with this Agreement, each Party is responsible for complying with laws and regulations applicable to its business and information, including but not limited to, import, export, economic sanction, and anti-corruption laws and regulations; and the defense trade control regimes of applicable jurisdictions (as well as those of the United States, such as the International Traffic in Arms Regulations) that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses, or end users. You must not pay, offer, or accept any illegal or improper bribe, payment, or thing of value in connection with this Agreement.
    • If any provision of the Agreement is deemed by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions remain in full force and effect, and the Parties intend that such provision be deemed modified to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is legal and enforceable and that achieves substantially the same objective.
    • Account Information. Saifr, its Affiliates, and subcontractors of either may use the business contact information You provide (such as names and email addresses) and account usage information gathered in connection with Your use of the Offering (such as audit logs and other digital information about Your device that may be learned through tracking technologies, cookies, web beacons and other automatic means) to (a) communicate and manage business dealings with You and Your Affiliates, (b) facilitate Your use of Third-Party Platforms and Third-Party Systems, and (c) enable, provide, manage, support, administer, and improve the Offering. This information is not Client Data, and any such use by Saifr will be subject to Saifr’s Privacy Policy located at https://www.saifr.ai/privacy/. By accessing, using, or providing information to or through, the Offering, You consent to the collection, transmission, use, disclosure and all other actions taken by Saifr with respect to such information that is in compliance with our Privacy Policy. Please review the Saifr Privacy Policy which provides additional details with respect to Saifr’s collection, use, and handling of these types of information.
    • Assignment; Successor and Assigns. Saifr may freely assign or delegate all rights and obligations under this Agreement, fully or partially, to an Affiliate or otherwise without notice to you. You may not assign or delegate any rights or obligations under this Agreement, in whole or in part, without the prior written consent of Saifr. Any purported assignment or delegation in violation of the foregoing will be ineffective and void ab initio. A transaction or series of transactions that results is a change of control is deemed an assignment. All provisions in the Agreement shall extend to, and be binding upon, the Parties and their respective successors and permitted assigns.
    • Notices and Administration. All notices, requests, demands, and other communications must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Saifr must be sent to Saifr at, 245 Summer Street, Boston, MA 02210. Notices to the Client will be sent to the address Client identifies as its contact on its account with Saifr or the Third-Party Host. Client consents to the use of electronic means (including email and facsimile transmissions) for communications and notices.
    • Claims and Arbitration. Any claim or controversy concerning this Agreement, or any alleged breach thereof, shall be settled by final and binding arbitration in accordance with the then existing rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over the Party against which the award is entered. The arbitration shall be conducted in Boston, Massachusetts. If You wish to pursue arbitration, You must submit a letter requesting arbitration and describing Your complaint to Saifr’s Legal Department, Attn: TCOE, 245 Summer Street, Boston, MA 02210.   You cannot bring a claim or other legal action that concerns this Agreement more than two years after the cause of action arises. No right or cause of action for any third party is created by the Agreement or any transaction under it, and no party (including Third-Party Hosts) will be deemed a third-party beneficiary under the Agreement.
    • Force Majeure. Saifr will not be responsible for failure to fulfill its obligations to the extent that (a) performance would be prohibited by, or violate, any Applicable Law or order of any court or Governmental Authority or (b) any delay or failure in performance results from a force majeure event, including acts of God, acts of civil or military authorities, orders or proclamations of a Governmental Authority, war, terrorism, quarantines, epidemics, pandemics, natural disasters, catastrophes, strikes or other work stoppages, interruption of utilities or other necessary services or supplies, cyberattacks, or any other cause beyond the reasonable control of Saifr. Saifr will promptly inform Client of a Force Majeure event and use reasonable efforts to continue or recommence performance as soon as reasonably practicable.
    • Global Resources. The Agreement is entered in, and Saifr’s obligations and Client’s rights apply only in, the United States. But Saifr’s Affiliates, personnel, resources, and subcontractors may operate in other locations to support the delivery of the Offering. In any case, Saifr remains responsible for the obligations under the Agreement and will have appropriate agreements in place with such persons to enable Saifr to meet its obligations that may be performed by those persons.
    • A Party’s failure to enforce any provision of the Agreement shall not be construed as a waiver of future violations thereof and shall not prevent that Party thereafter from enforcing every provision of the Agreement. Except as otherwise provided, the rights granted to the Parties herein are cumulative, and the waiver by a Party of any single remedy shall not constitute a waiver of such Party’s right to assert all other legal remedies available under the circumstances.

“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Party.

“AI Generated Information” means creative works such as text, graphics, pictures, images, video, audio, and recordings, of any kind generated or derived by or from machine-learning or other artificial intelligence tools (“AI Tools”) used or incorporated in the Offering (excluding any Client Data therein).

“Applicable Law” means laws, rules, regulations, and ordinances of any Governmental Authority that apply to a Party in the performance of its obligations under the Agreement and, more specifically, the context of the provision where the term is used.

“Client Data” means the processing inputs strictly necessary for Saifr to provide the services contemplated hereunder, that the Client or its Authorized Users provide to Saifr or that they authorize Saifr to access or enter into the Saifr Software. Client Data may consist, for example, of the Client’s documents, files, materials, audio and video recordings, and Restricted Information.

“Commercial Marketplace” means, in the case of Offerings listed through Microsoft storefronts, the Azure Marketplace, Microsoft AppSource, and any Microsoft owned or operated endpoints that point to those storefronts through which the Offering may be made available to customers, including any updates or successors (however named) to such storefronts.

“Customer Resource Center” means the web portal, currently available at https://saifr.ai/client-support, or other Saifr owned or operated interfaces, through which customers may contact Saifr, receive communications from Saifr, and access certain Offering Materials.

“Data Protection Laws” means U.S. consumer privacy and consumer data protection laws that are applicable to a Party in the performance of its obligations under the Agreement, including implementing, derivative or related legislations, rules, regulations, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted. For the avoidance of doubt, Data Protection Laws if applicable to Saifr are applicable to the extent Saifr is a “service provider” or “data processor” under such laws and regulations in its role as a provider of services to the Client under the Agreement.

“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.

“Government,” “Governmental” or “Governmental Authority” means any instrumentality, subdivision, court, administrative agency, commission, bureau, department, official or other authority of any country, state, province, prefect, municipality, locality or other government or political subdivision thereof, or any multinational organization or authority, or any quasi-governmental, private body, or public or private mediator, arbitrator or arbitral body or other body that exercises any executive, legislative, judicial, quasi-judicial, regulatory, taxing, importing, administrative or other governmental or quasi-governmental authority.

“Offering” means, collectively: (a) the Saifr Software and Saifr Services; (b) results and outputs generated from the Saifr Software and Saifr Services that Saifr delivers to You (“Deliverables”); (c) Offering Materials and all other works of authorship, licensed materials and documentation provided with or through the Saifr Software and Services; and (d) the Saifr websites, platforms, and products identified in an ordering document, or that Saifr provides for Your use in connection with Your licensing of the Saifr Software and Services, including any Saifr equipment, technology, or services that enable Your use of the foregoing. Offering availability may vary by region.

“Offering Materials” means manuals, documentation, specifications, and other similar works of authorship that are generally made available by Saifr to support a customer’s use of the Offering.  

“Restricted Information” means, collectively, electronic communications that the Client has a right to collect or monitor (“Stored Communications”), and “nonpublic personal information” of the end customer (as such term is defined in Regulation S-P adopted under Section 504 of the Gramm-Leach-Bliley Act, as amended).

“Saifr Services” means the limited technical, operational, maintenance, and customer support services provided by Saifr in connection with Your licensing of the Saifr Software. Saifr Services include, for example, the process of configuring and deploying the Saifr Software through cloud-based functionality (including Third-Party Platforms), API integration, Updates, and help desk support.

“Saifr Software” means the proprietary set or series of instructions, information, data, processes, and programs that allow or cause Saifr’s computing systems to perform specific operations and tasks, or series of operations and tasks, in connection with the processing and handling of customer inputs, as delivered through a cloud-based program package and applications supplied by Saifr or the Third-Party Host as part of a “software as a service” (“SaaS”) offering, or that are delivered as a separately distributed program (also known as “on-premise software” or “software as a product”). Saifr Software includes the original and all whole or partial copies of recorded information that may comprise of (a) source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable computer programs to be produced, created, or compiled; (b) pretrained models, software and algorithms, including machine-learning model code, trained model weights, inference-enabling code, training-enabling code, fine-tuning enabling code, instructions, data, and other elements, components, files, and modules of the foregoing; (c) audio-visual content such as images, text, recordings, and pictures, and other works of authorship and licensed materials and documentation provided with or through the software; and (d) Updates, enhancements, modifications, fixes or workarounds thereto, and other support modules provided by Saifr.