At Snowfire, we’re building one of the most secure AI platforms in the world
because your trust and data deserve nothing less.
These Terms of Service (the "Agreement") are entered into by and between Snowfire Corp., a Delaware corporation with offices at 16192 Coastal Hwy, Lewes, DE 19958 ("Snowfire") and the customer acquiring certain products and services of Snowfire ("Customer", and together with Snowfire, the "parties" and each, a "party"). This Agreement shall be effective as of the date the Customer agrees to be bound by this Agreement (the "Effective Date").
Subject to and conditioned on Customer's compliance with this Agreement, Snowfire hereby grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (as defined below) to use the Product, including any Output (as defined below), solely for Customer's non-commercial, internal business use. Customer's access to and use of the Product must further comply in all material respects with all usage guidelines posted or made available by Snowfire.
"Product" shall mean Snowfire's technology-enabled product, including the software offering branded as "Snowfire" and the website at https://www.snowfire.ai/ as well as other related subdomains, software, content, services and/or platforms, including all versions and upgrades thereto.
During the Evaluation Term (as defined below), Customer shall have the right to create the number of Third Party Integrations (as defined below) set forth in the order for the Product or as otherwise agreed to by the parties (the "Order Form") pursuant to the license set forth in Section 1(a).
Except as expressly authorized in this Agreement or by Snowfire, Customer will not, and will not permit any third party, including any Authorized User (as defined below) to:
(i) access or use the Product for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes);
(ii) modify, adapt, or create derivative works of the Product;
(iii) rent, lease, loan, resell, transfer, sublicense, display or distribute the Product to any third party;
(iv) decompile, disassemble, translate or reverse-engineer the Product or otherwise attempt to derive the Product' source code, algorithms, models or techniques used or embodied in the Product;
(v) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Product;
(vi) interfere with or disrupt servers or networks connected to any website through which the Product are provided;
(vii) automatically or programmatically extract data;
(viii) represent that any Output (as defined below) was human-generated when it was not;
(ix) use the Product for any illegal, unauthorized or otherwise improper purposes;
(x) use or offer any functionality of the Product on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet "links" to the Product, or "frame" or "mirror" the Product on any other server, or wireless or Internet-based device;
(xi) use the Product to build a similar or competitive product or service; or
(xii) use the Product to transmit code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.
All information, data (including information received or provided by Customer through Customer's use of the Product), text, documents, and other materials accessible, either directly or indirectly, through the Product ("Data") are the sole responsibility of the party from whom such information, data, text, documents, or materials originated. Customer acknowledges and agrees that:
(i) the Product may provide access to or rely on Data from third parties;
(ii) Customer, and not Snowfire, is entirely responsible for all Data (if any), including ensuring the accuracy, completeness, and integrity of such Data, that Customer or its authorized users (such users, "Authorized Users"), as applicable, submits, uploads, emails, transmits, or otherwise makes available, either directly or indirectly, through or to the Product or to Snowfire or through or two a Third Party Integration (as defined below) ("Customer Data"); and
(iii) Customer is solely responsible for giving all required notices and obtaining all necessary consents before submitting, uploading, emailing, transmitting, or otherwise making available Customer Data through or to the Product or Snowfire.
Customer hereby further represents and warrants that:
(1) Customer has all necessary rights and licenses to submit, upload, email, transmit, or otherwise makes available all Customer Data for Snowfire to exercise its rights granted and fulfill its obligations set forth herein, including as necessary for Snowfire to process any Customer Data submitted or make available, either directly, indirectly or through a Third Party Integration (as defined below), through or to the Product or Snowfire in accordance with this Agreement, including as set forth in Section 8(c); and
(2) that Customer's submission of Customer Data through or to the Product or Snowfire, either directly, indirectly or through a Third Party Integration, will not violate this Agreement, any Snowfire usage guidelines or other policies, or any laws applicable to such Customer Data, including without limitation intellectual property laws and any privacy or data protection laws.
Customer shall not, and shall ensure each Authorized User does not, without Snowfire's prior written consent, provide, submit, upload, email, transmit, or otherwise make available, whether directly or indirectly from you or through a Third Party Integration (defined below), any Data that is:
(i) Sensitive Personal Information;
(ii) related to an individual's biometric information;
(iii) covered under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as may be amended from time to time, including the Health Information Technology for Economic and Clinical Health Act and similar laws; or
(iv) related to a minor, as defined under applicable law.
"Sensitive Personal Information" includes information relating to race, ethnicity, religious beliefs, moral beliefs, philosophical beliefs, sex life, sexual orientation, gender identity, political opinions, trade union membership, medical information (including mental health), genetic data, biometric data, social security numbers, personal financial information (such as credit card, debit card and bank account numbers) and any other information considered sensitive personal information under applicable data and privacy laws and regulations.
Authorized Users may access and use the Product on Customer's behalf contingent upon such Authorized User's compliance with the terms and conditions of this Agreement and the terms of usage guidelines or other policies provided or made available by Snowfire (the "End User License Agreement"), provided that:
(i) each Authorized User has a separate user account and only one Authorized User has access to each account;
(ii) Customer is responsible for ensuring that all Authorized Users agree in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer;
(iii) such use is only in furtherance of Customer exercising its rights granted and fulfilling its obligations set forth herein;
(iv) such use does not represent or constitute an increase in the scope of the license provided hereunder; and
(v) Customer remains fully responsible and liable for any and all acts or omissions by such Authorized Users related to this Agreement and the End User License Agreement as if such acts or omissions are committed by Customer itself.
Including with respect to Section 13, Snowfire reserves the right at any time to modify, suspend, or discontinue the Product (or any portion thereof) with or without notice, and Snowfire shall not be liable to Customer or any third party for any such modification or discontinuance.
Customer acknowledges and agrees that the Product may include features that allow Snowfire to monitor use of the Product to confirm that such use complies with this Agreement. Such features may further permit Snowfire to disable use of the Product remotely. If Snowfire determines, in its sole discretion, that Customer's use of the Product imposes an unreasonable or disproportionately high load or burden on the Product or Snowfire's infrastructure, systems or resources, Snowfire may take reasonable actions to protect the integrity and performance of the Product or its infrastructure, systems or resources, including temporarily limiting, suspending or throttling Customer's access to the Product or certain features thereof. Snowfire will make a reasonable effort to notify Customer (email being sufficient) prior to taking such actions and will work in good faith to resolve the underlying issue.
If indicated in an Order Form or otherwise agreed to by the parties, Snowfire shall perform certain professional services as further set forth in the applicable Statement of Work (each, a "Statement of Work"), which may include integration, training, support or other similar services (collectively, "Professional Services"). Each Statement of Work will be governed by the terms and conditions of this Agreement and will specify, among other terms the parties deem relevant:
(i) a description of the Professional Services that Snowfire will provide;
(ii) the schedule for performance;
(iii) the fees that Customer will pay; and
(iv) the schedule for payment.
In the event of any conflict between the terms and conditions of this Agreement and any Statement of Work, the terms and conditions of this Agreement shall take precedence except as expressly stated otherwise.
Customer shall supply Snowfire all information and inputs reasonably necessary for Snowfire to provide the Professional Services to Customer ("Customer Technical Specifications"), which may include information, documents, equipment, services, access, facilities and support regarding Customer's systems. In the event Customer fails to provide the Customer Technical Specifications, Customer will reimburse Snowfire for additional costs incurred due to such failure.
In addition to this Agreement and the End User License Agreement, the Snowfire Privacy Policy, available at https://www.snowfire.ai/resources/privacy-policy, which may be amended from time to time, (the "Privacy Policy") applies to how Snowfire may process personal information (including that of Customer's Authorized Users) provided as part of the Product. Customer acknowledges and agrees that by accessing or using the Product, Snowfire may receive certain information about Customer and/or Authorized Users, as applicable, including personal information, as set forth in the Privacy Policy, and Snowfire may collect, use, disclose, store, share, and process such personal information in accordance with such Privacy Policy.
Each party shall comply with the Data Processing Agreement available at trust.snowfire.ai, which is incorporated herein by reference.
Snowfire represents and warrants that it will provide the Services to Customer in accordance with the Service Level Agreement available at trust.snowfire.ai, which is incorporated herein by reference.
Including as set forth in Section 2(b), Customer shall be solely responsible for obtaining, configuring and maintaining any third-party hardware, network connectivity and third-party software required to access and use the Product, including computers, operating systems, web browsers and storage devices.
Customer grants Snowfire and its service providers a perpetual, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all Customer Data (in any form and any medium, whether now known or later developed) to the extent necessary for Snowfire to exercise its rights granted and fulfill its obligations set forth herein. Customer acknowledges and agrees that the technical processing and transmission of Data associated with the Product, may require:
(i) transmissions over various networks and across borders; and
(ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
The Product provided to Customer hereunder or products and services available to Customer through the Product, including any Output (as defined below), are licensed, not sold. Including as further set forth in Section 4(d), Customer acknowledges and agrees that, as between Customer and Snowfire, Snowfire and its licensors owns all rights, title, and interest (including all intellectual property rights) in and to the Product and all data, content, and other materials within the Product, excluding any Customer Data. Snowfire retains and reserves all rights not expressly granted in this Agreement. The foregoing shall include all rights of patent, copyright, trade secret and other proprietary rights in all technology, know-how, software, processes, efforts and methods, forms, procedures, data formats, data gathering and retrieval systems and methods, program names, designs and manuals, templates, forms and other proprietary or copyrighted material supplied by Snowfire or prepared by or for Snowfire prior to or independently of this Agreement or a Statement of Work.
Customer may not use "Snowfire" or any of Snowfire's names, brands, trademarks, service marks or logos that Snowfire makes available on or through the Product ("Marks"). Snowfire claims trademark protection over all such Marks, and Customer will not use the Marks except as expressly authorized herein. Customer will not remove or alter the Marks or any proprietary notices on the Product. Customer may not include the Marks in or as part of any registered corporate name, any other logo, or service or product name. Customer may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Snowfire. Customer will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use will inure to Snowfire's benefit.
Customer shall provide Customer Data and certain other text, content, data and information to the Product ("Input") and receive an output from the Product based on the Customer Data ("Output"). Excluding any Customer Data, Snowfire shall own all right, interest and title in and to the Input and Output. Customer is responsible for Customer Data, including ensuring that it does not violate any applicable law or this Agreement, including any privacy, likeness, or other intellectual property right. Including as otherwise set forth herein, Customer represents and warrants that Customer has all rights, licenses, consents, and permissions needed to provide Customer Data to the Product. All right, title, and interest in and to the Customer Data and all intellectual property embodied therein or related thereto shall be and shall remain the sole and exclusive property of Customer. Due to the nature of the Product and artificial intelligence generally, Output may not be unique and other users may receive similar output from the Product. For the avoidance of doubt, nothing in this Section 4(d) shall limit any rights afforded in Section 4(e).
Notwithstanding anything to the contrary, Snowfire shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Product and related systems and technologies (including, without limitation, information concerning Customer Data and Outputs and data derived therefrom) ("Aggregated Data"), and Snowfire will be free (during and after the Term) to: use Aggregated Data to improve and enhance the Product and for other development, diagnostic and corrective purposes in connection with the Product and other Snowfire products and services; and (ii) disclose Aggregated Data in connection with Snowfire's business, products and services. Snowfire shall own all right, title, and interest (including all intellectual property rights) in and to the Aggregated Data.
If Customer elects to provide or make available to Snowfire any suggestions, comments, ideas, improvements or other feedback relating to the Product or Professional Services, including with respect to any Beta Product (as defined below) ("Feedback"), Snowfire shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in Customer's Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer.
Customer shall pay all agreed upon amounts for all products or features ordered through the Product as set forth in the Order Form or Statement of Work (the "Fees"). All fees shall be in USD.
All payments will be made in United States dollars and are non-refundable and non-cancelable, except as otherwise specifically set forth in this Agreement. There will be no refunds or credits for partial months of Service, upgrade/downgrade integration refunds, or refunds for months unused with an open account. Customer hereby:
(i) acknowledges and agrees that Snowfire may require Customer to make payment through a third-party merchant of record;
(ii) acknowledges and agrees that Snowfire will not be responsible for any payments, fees or penalties as a result of Customer's failure to provide up-to-date and accurate information to any such merchant of record; and
(iii) acknowledges and authorizes Snowfire and its merchant of record to charge all Fees to Customer's chosen payment method.
Including as further set forth in Section 8(a), payments made through the merchant of record shall be subject to the merchant of record's terms of service and privacy policy.
If Customer fails to pay any past due invoice, Snowfire may charge interest on all past due invoices at a rate of 2.5% per month or the highest rate allowed by applicable law, whichever is lower.
All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Product or Professional Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges (collectively, "Taxes"), but excluding withholding taxes and taxes solely based on Snowfire's net income, and Customer shall be responsible for payment of all such Taxes, and any related penalties and interest arising from the payment of such amounts.
"Confidential Information" shall mean all information identified in good faith by either party as being confidential or proprietary or information that, under the circumstances, a reasonable person would assume to be confidential or proprietary. Confidential Information shall include trade secrets, know-how, research, product plans, products, services, customers, customer lists, markets, software, developments, processes, formulas, technology, designs, drawings, engineering, blueprints, hardware configuration information, marketing, finances, or other business information provided by either party. Confidential Information may include third party information as to which the disclosing party has an obligation of confidentiality. All Customer Data shall be considered the Confidential Information of Customer.
Confidential Information shall not include information that:
(i) can be demonstrated to have been publicly known at the time of the disclosing party's disclosure of such Confidential Information to the receiving party;
(ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party;
(iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information;
(iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or
(v) is required to be publicly disclosed by law, provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.
Each party agrees that it will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care.
Neither party shall disclose to a third-party Confidential Information of the other party except to receiving party's own employees, contractors, agents, directors, and members (collectively, "Representatives") having a need to know in connection with the receiving party's exercise of its rights or performance of its obligations hereunder, provided that:
(i) all such Representatives are bound by similar nondisclosure restrictions as set forth herein; and
(ii) the receiving party shall be liable for any breach of this Agreement by its Representatives as if committed by the receiving party itself.
The Product may contain links or connections to or advertisements for other websites ("Third Party Sites") owned, hosted or licensed by a third party (each, a "Third Party Provider"), including its merchant of record. Snowfire does not endorse, sanction or verify the accuracy or ownership of the information contained in/on any Third Party Site or any products or services advertised on Third Party Sites. If Customer decides to leave the Product and navigate to Third Party Sites or install any software or download content from any such Third Party Sites, Customer does so at Customer's own risk. Once Customer accesses a Third Party Site through a link in the Product, Customer may no longer be protected by this Agreement and Customer may be subject to the terms and conditions or privacy policy of such Third Party Site. Customer acknowledges that any terms and conditions governing Customer's use of such Third Party Sites are solely between Customer and the applicable Third Party Provider and that Customer is not a party to any agreement between Customer and any Third Party Provider. Customer should review the applicable policies, including privacy and data gathering practices, of any Third Party Site to which Customer navigates from the Product, or relating to any software Customer uses or installs from a Third Party Site. Concerns regarding a Third Party Site should be directed to the Third Party Site itself. Snowfire bears no responsibility for any action associated with any Third Party Site. Snowfire reserves the right to change, at any time with or without notice to Customer, which Third Party Sites, if any, that the Products use or are linked to.
Customer may enable integrations between the Product and certain Third Party Providers contracted by Customer ("Third Party Integrations"). Customer hereby represents and warrants that it shall have all rights and licenses necessary for Snowfire to enable a Third Party Integration, including through the use of a Third Party Provider's application programming interface ("API"). If Customer enables a Third Party Integration, Customer acknowledges that Snowfire may allow the Third Party Provider to access Customer Data to the extent required for the interoperation of such Third Party Providers with the Product. Snowfire will not be responsible for any disclosure, modification, or deletion of any Data resulting from any such access by Third Party Providers, and Customer is responsible for providing any and all instructions to such Third Party Providers about the use and protection of such Customer Data.
CUSTOMER ACKNOWLEDGES THAT SNOWFIRE USES THIRD-PARTY APIS AND THAT SUCH APIS PROVIDE CERTAIN GENERATIVE ARTIFICIAL INTELLIGENCE FUNCTIONALITIES THAT INFORM THE OUTPUTS. Snowfire reserves the right to change, at any time with or without notice to Customer, which third-party APIs, if any, that the Products use or are linked to, including any general AI models or model providers. Snowfire may, but is not required to, use or link to any generative AI models or model providers requested by Customer for Customer's use of the Products as set forth herein to the extent:
(i) commercially and technologically feasible, as determined in Snowfire's sole discretion;
(ii) such model or provider does not pose a security threat or similar risk; and
(iii) Snowfire reserves the right to revoke or terminate such use or link.
For the avoidance of doubt and as further set forth herein, Customer represents and warrants that to the extent any Customer Data includes personally identifiable information, Customer has provided all necessary notices and received all necessary consents for Snowfire to process and use such information in connection with generative artificial intelligence functionalities and other large language models.
If designated in the Order Form, Snowfire shall offer the Product free of charge for the evaluation term length set forth in the Order Form commencing on the Effective Date (the "Evaluation Term"). Each party shall have the right to terminate the Agreement at any time during the Evaluation Term upon written notice to the other party (email sufficient). If neither party provides such notice, the Initial Term shall automatically commence at the end of the Evaluation Term. The initial term length shall commence on the later of the Effective Date or the end of the Evaluation Term, as applicable, and shall continue for the initial term length set forth in the Order Form (the "Initial Term"), which shall automatically renew for successive terms of equal length beginning on the day immediately following the expiration of the Initial Term or then-current renewal term (each, a "Renewal Term" and each together with the Initial Term, collectively, the "Term") unless either party provides notice to the other party of its intent not renew at least sixty (60) days before the end of the Initial Term or then-current Renewal Term.
This Agreement and the Order Form may be terminated as follows:
(i) immediately if the other party materially breaches any of the terms or conditions of this Agreement, the Order Form, a Statement of Work or to the extent such breach is curable, upon thirty (30) days' notice if the breaching party fails to cure such breach within such time period; or
(ii) by either party in the event the other party becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor's relief law, has a receiver or manager appointed, makes an assignment for the benefit of creditors, or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party's business.
For the avoidance of doubt, a breach of Section 6 shall be a material breach of this Agreement by Customer.
Snowfire reserves the right to suspend Customer's or any Authorized User's access to the Product in the event:
(i) Customer or Authorized Users use the Product in violation of the terms and conditions of this Agreement or the End User License Agreement in a manner that disrupts or is reasonably likely to disrupt the availability of the Product to other users;
(ii) Customer fails to make payment within five (5) business days of such payment becoming due; or
(iii) an emergency security issue.
If access is suspended pursuant to clause (iii), Snowfire will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the disruption.
Upon termination of this Agreement for any reason:
(i) Snowfire, in its sole discretion, may remove and discard any Customer Data;
(ii) Customer will immediately cease use of the Product; and
(iii) any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.
Further, Customer agrees that that Snowfire shall not be liable to Customer or any third party for any termination of Customer's account or access to the Product. Notwithstanding Section 9(d)(i) and unless otherwise required or restricted by law, prior to the removal or discard of any Customer Data, Customer shall have the right to request within thirty (30) days of the termination of this Agreement that that Snowfire provide all Customer Data in Snowfire's possession to Customer. Snowfire will deliver or make available for download any Customer Data requested pursuant to the previous sentence in a format maintained in Snowfire's ordinary course of business unless mutually agreed otherwise. Any outstanding Statement of Work shall immediately terminate upon the termination or expiration of this Agreement.
Snowfire shall indemnify and hold Customer and its affiliates, and each of their officers, directors, employees, agents, partners and licensors harmless from and against any loss, damage, cost, liability and expense (including reasonable attorneys' fees) finally awarded by a court of competent jurisdiction or paid in settlement (collectively, "Losses") to the extent arising from any action or claim of a third party (each, a "Claim") asserting that the Product infringes the intellectual property rights of such third party; provided, however, that Snowfire shall have no obligation to indemnify Customer from any such Claim to the extent they arise from:
(i) use of the Product in any manner that does not comply in all material respects with the terms and conditions of this Agreement and any applicable laws, rules or regulations;
(ii) use of the Product in combination with any hardware or software not provided or approved by Snowfire;
(iii) modifications to the Product not made or authorized by Snowfire; or
(iv) Data or any other data or content submitted by Customer or third parties, including Authorized Users, to the Product (clauses (i) through (iv), collectively, "Customer Acts").
In the event that any part of the Product becomes the subject of or Snowfire reasonably determines that any part of the Product is likely to become the subject of a Claim as set forth in the previous sentence, Snowfire may, at its sole discretion:
(1) procure for Customer a license as necessary for Customer to exercise the rights granted by Snowfire under this Agreement;
(2) modify or replace the Product to avoid infringement, provided, however, that the Product as modified or replaced retains materially the same or better features and functionality; or
(3) terminate this Agreement and provide a pro rata refund of the fees paid by Customer to Snowfire for the unused portion of the Initial Term or then-current Renewal Term, as applicable.
THIS SECTION 11 SETS FORTH CUSTOMER'S SOLE REMEDIES AND SNOWFIRE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PRODUCT OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Customer shall indemnify and hold Snowfire and its affiliates, and each of their officers, directors, employees, agents, partners and licensors harmless from and against all Losses due to a Claim resulting from:
(i) Customer Data;
(ii) Customer's violation of this Agreement, any Statement of Work, any law or regulation, or any rights (including intellectual property rights or rights to privacy or likeness) of another party; or
(iii) Customer's use of the Product, except as expressly permitted in this Agreement.
The indemnified party shall:
(i) give the indemnifying party prompt written notice of any indemnified claim, provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 10, except to the extent the indemnifying party has been prejudiced thereby;
(ii) cooperate fully with the indemnifying party, at the indemnifying party's expense, in the defense or settlement of any indemnified claim; and
(iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
Each party represents and warrants to the other party that:
(i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized;
(ii) it has the requisite power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder;
(iii) it has taken all requisite action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and
(iv) the execution and delivery of this Agreement and the performance of such party's obligations hereunder do not conflict with, or constitute a default under, any contractual obligation of such party.
CUSTOMER'S USE OF THE PRODUCT IS AT CUSTOMER'S SOLE RISK. THE PRODUCT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND UNLESS EXPLICITLY STATED OTHERWISE HEREIN, SNOWFIRE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
SNOWFIRE MAKES NO WARRANTY OR REPRESENTATION THAT:
(i) THE PRODUCT OR PROFESSIONAL SERVICES, INCLUDING ANY THIRD-PARTY INTEGRATIONS, WILL MEET CUSTOMER'S REQUIREMENTS;
(ii) ACCESS TO THE PRODUCT OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR
(iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE PRODUCT OR PROFESSIONAL SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE, INCLUDING AS SET FORTH IN SECTION 11(d).
Artificial intelligence and machine learning are rapidly evolving fields of study. Snowfire is constantly working to improve the Product and Professional Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of machine learning, use of the Product may, in some situations, result in Output that does not accurately reflect real people, places, or facts. When Customer uses the Product, Customer understands and agrees that:
(i) Outputs may not always be accurate, and Customer should not rely on Outputs from the Product as a sole source of truth or factual information or as a substitute for professional advice;
(ii) Customer must evaluate Outputs for accuracy and appropriateness for Customer's use case, including using human review as appropriate, before using or sharing Outputs from the Product;
(iii) Customer must not use any Output relating to a person for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, legal, medical, or other important decisions about them; and
(iv) the Product may provide incomplete, incorrect, or offensive Outputs that does not represent Snowfire's views.
If an Output references any third party products or services, it does not mean the third party is affiliated with Snowfire or that Snowfire endorses such third party.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. EXCEPT AS SET FORTH IN SECTION 13(b), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER'S ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE PRODUCT OR PROFESSIONAL SERVICES EXCEED THE AMOUNT PAID BY CUSTOMER TO SNOWFIRE FOR ACCESS TO THE PRODUCT OR PROFESSIONAL SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY DURING THE EVALUATION TERM SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ALL SNOWFIRE PRODUCTS LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY ("Beta Product") ARE PROVIDED "AS IS", "AS AVAILABLE", WITH ALL FAULTS, AND CUSTOMER'S USE OF SUCH BETA PRODUCT IS AT ITS SOLE RISK AND SNOWFIRE DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS OF ANY KIND. Snowfire has no obligations in connection with or in the course of providing the Beta Product. Any expectations and estimates regarding Beta Product are based on factors currently known and actual events or results could differ materially. Snowfire does not assume any obligation to update any Beta Product. In addition, any information about Snowfire's roadmap outlines Snowfire's general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Snowfire undertakes no obligation either to develop the features or functionality provided in the Beta Product, or to include any such feature or functionality in a future release of the Product. Customer expressly acknowledges that the Beta Product has not been fully tested and may contain defects or deficiencies which may not be corrected by Snowfire. The Beta Product may undergo significant changes prior to release of the corresponding generally available final version.
NOTWITHSTANDING SECTION 12(b) WHERE LEGAL LIABILITY CANNOT BE EXCLUDED BUT MAY BE LIMITED, SNOWFIRE'S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS ($100) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE BETA PRODUCT.
Customer represents and warrants that Customer will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Product or Professional Services are delivered or used and Customer and each of its Authorized Users is not:
(i) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a "terrorist supporting" country; and
(ii) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
This Agreement shall be governed by the laws of the State of Texas, without regard to its choice of law provisions. Neither party will commence or prosecute any suit or claim to enforce this Agreement or otherwise arising under or by reason of this Agreement, other than in the federal and state courts of competent jurisdiction in or having jurisdiction over Travis County, Texas. The Parties hereby irrevocably consent to the jurisdiction and venue of such courts with regard to any suit, claim or controversy arising under or by reason of this Agreement.
In the event any provision of this Agreement is deemed unenforceable, it shall be stricken from this Agreement, but the remainder of the Agreement shall be unimpaired.
No waiver of any term of this Agreement shall bind the party making such waiver unless in writing and signed by the party making such waiver. Any such waiver shall be effective only in the specific instance and for the specific purpose given. No waiver by a party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Snowfire. Snowfire may freely assign this Agreement without Customer consent or notice to Customer. Any assignment by Customer in violation of this Section (d) shall be null and void. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties.
The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint venturers of the others for any purpose as a result of this Agreement or the transactions contemplated thereby. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party.
There shall be no third-party beneficiaries to this Agreement.
Each party agrees to execute, acknowledge and deliver such further documents and instruments and to perform all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
All requests and notices required or permitted to be given to the parties hereto shall be given in writing and shall be delivered to the other party, effective
(i) upon receipt if delivered personally (or if mailed by registered or certified mail),
(ii) by email (return receipt requested), or
(iii) the day after dispatch if sent by overnight courier, at the appropriate address as set forth below or to such other addresses as may be designated in writing by the parties from time to time during the term of this Agreement.
If to Snowfire:
Snowfire Corp.
16192 Coastal Hwy
Lewes, DE 19958
If to Customer:
At the address set forth in the Order Form.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
Snowfire may reproduce and display Customer's trademarks and logos on its websites and other marketing materials for the purpose of identifying Customer as a customer of Snowfire.
Together with the End User License Agreement, this Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. In entering into this Agreement, neither party is relying on any statements, representations or warranties not contained herein. No consent, modification or change of any term of this Agreement shall bind either party unless signed in writing by both parties.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one and the same agreement.
The captions to the several sections hereof are not a part of this Agreement but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
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