DEPLOY AI SOFTWARE AND SERVICES AGREEMENT
Please read this Software and Services Agreement (this “Agreement”), carefully because it is a legal agreement by and between Aureum Technologies, Inc. (“Aureum”) and you (“Customer”) effective as of the date Customer clicks “I Accept” below (the “Effective Date”) and governs Customer’s access to and use of the Deploy AI Agent Solution and corresponding software offered by Aureum. Aureum and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
DEFINITIONS.
“Aureum IP” means the Deploy AI Agent Solution; the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Deploy AI Agent Solution and the Software; all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship); and all Intellectual Property Rights in and to any of the foregoing.
“Authorized Users” means any employees or contractors that Customer authorizes to use the Deploy AI Agent Solution or Software on its behalf.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is provided, or otherwise uploaded, by or on behalf of Customer through the Deploy AI Agent Solution or to Aureum in connection with Customer’s use of the Deploy AI Agent Solution, but excluding, for clarity, Service Information.
“Deploy AI Agent Solution” means Aureum’s proprietary AI empowered agent solution made available to Customer subject to this Agreement.
“Documentation” means the standard user documentation for the Software that Aureum makes available to Customer.
“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Software” means Aureum’s proprietary software products in executable code form provided by Aureum to Customer under this Agreement, and any related Documentation as specified by Aureum, and any error corrections, modifications or updates to the foregoing.
“Use” means to use and access the Deploy AI Agent Solution or Software in accordance with this Agreement. DEPLOY AI AGENT SOLUTION AND SOFTWARE.
(a) Right to Use. Subject to Customer’s compliance with the terms and conditions of this Agreement, Aureum grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 9) right to Use the Deploy AI Agent Solution during the term. No rights are granted to Customer hereunder other than as expressly set forth herein.
(b) Software License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Aureum hereby grants to Customer a nonexclusive license to (i) Use the Software solely for Customer’s internal use in compliance with the Documentation and (ii) copy the Software as reasonably necessary to exercise the license rights granted in subsection (i), including making a reasonable number of copies for backup purposes, during the term of this Agreement.
(c) Use Restrictions. Customer will not and will not permit any person or entity (including Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Deploy AI Agent Solution or the Software; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Deploy AI Agent Solution or the Software, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Deploy AI Agent Solution or Software to any other person or entity, or otherwise allow any person or entity to use the Deploy AI Agent Solution or the Software for any purpose other than for the benefit of Customer in accordance with this Agreement and the Documentation; or (iv) Use the Deploy AI Agent Solution or the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law.
(d) Authorized Users. Customer will not allow any person or entity other than Authorized Users to Use the Deploy AI Agent Solution or Software. Customer may allow Authorized Users to Use the Deploy AI Agent Solution or Software provided that Customer is responsible for (i) all acts or omissions by its Authorized Users in connection with their use of the Deploy AI Agent Solution and (ii) Authorized Users’ compliance with the terms and conditions of this Agreement, including, without limitation, Customer’s obligations and the restrictions set forth in Section 2(b).
(e) Third Party Services. Certain functionalities of the Deploy AI Agent Solution are provided by third parties (“Third Party Services”) pursuant to additional terms and conditions (“Third Party Terms”). Aureum is not responsible for any content, products or services on or available from Third Party Services. Customer agrees to abide by any Third Party Terms which may apply to such Third Party Services.
FINANCIAL TERMS. During the term of this Agreement, Customer’s Use of the Deploy AI Agent Solution and the Software is offered by Aureum free of charge. Aureum reserves the right to charge Customer fees (“Fees”) for Customer’s Use of the Deploy AI Agent Solution or the Software upon sixty (60) days’ written notice to Customer, provided that Customer may, up to ten (10) days before the implementation of Fees, notify Aureum in writing of its intention to terminate this Agreement, effective upon Aureum’s receipt of such notice.
OWNERSHIP.
(a) Customer Materials. As between Customer and Aureum, Customer owns and retains all right, title and interest in and to all Customer Materials. Aureum may use, display and modify the Customer Materials solely to provide and improve the Deploy AI Agent Solution and/or the Software during the term of this Agreement. In addition, Aureum may develop or derive data or insights in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Deploy AI Agent Solution, including, without limitation, any usage data or trends with respect to the Deploy AI Agent Solution (collectively “Service Information”).
(b) Aureum IP. Aureum reserves all rights not expressly granted to Customer hereunder and reserves and will solely own the Aureum IP and the Service Information.
(c) Customer Materials. Customer represents and warrants that Aureum’s use of the Customer Materials will not violate applicable law or regulation or violate any third party Intellectual Property Right or cause a breach of any third-party agreement or obligation. Customer owns all Customer Materials, including any inputs provided by or for Customer to the Deploy AI Agent Solution. With regard to the Customer Materials, Customer hereby grants Aureum: (i) a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify such materials to host, operate, improve and provide the Deploy AI Agent Solution and any other products or technologies that Aureum develops or may develop, including to train and improve artificial intelligence or machine learning models; (ii) the right to sublicense such materials to provide the Deploy AI Agent Solution; and (iii) the right to use such materials (including confidential Customer Materials) to develop the Service Information
TERM AND TERMINATION.
(a) Term. The initial term of this Agreement begins on the Effective Date and will continue until termination in accordance with the terms provided herein.
(b) Termination; Effect of Termination. Aureum may terminate this Agreement upon fifteen (15) days’ written notice to Customer. Furthermore, either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Upon expiration or termination of this Agreement, (i) each Party will make no further use of any Confidential Information belonging to the other Party, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially, and (ii) Customer’s and its Authorized Users’ right to Use the Deploy AI Agent Solution or Software will immediately terminate, and Customer shall delete and remove, and cause its Authorized Users to delete and remove, any downloaded copies of the Software. The rights and obligations of Aureum and Customer contained in Sections 2(c), (d) and (e), 4 (only with respect to ownership), 5(b) and 6 – 6 will survive any expiration or termination of this Agreement.
CONFIDENTIALITY.
(a) Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Aureum IP will be deemed Confidential Information of Aureum. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that as contemplated above, Aureum may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Service Information. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
REPRESENTATIONS AND WARRANTIES; INDEMNITY. Customer represents and warrants that Aureum’s use of the Customer Materials in accordance with this Agreement will not violate any applicable law or infringe any Intellectual Property Right or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party. Customer will defend, indemnify and hold harmless Aureum from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Aureum, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a claim against Aureum that: (i) the Customer Materials or their use by Aureum in accordance with this Agreement infringe, misappropriate or violate a third-party’s Intellectual Property Rights , or result in the violation of any applicable law; or (ii) is based on Customer’s or an Authorized User’s use of the Deploy AI Agent Solution to the extent such use was not in accordance with this Agreement.
DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE DEPLOY AI AGENT SOLUTION AND THE SOFTWARE ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT THAT LAW PERMITS, AUREUM HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE. WITHOUT LIMITING THE FOREGOING, AUREUM HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE DEPLOY AI AGENT SOLUTION OR THE SOFTWARE WILL BE AVAILABLE, ERROR-FREE, OR UNINTERRUPTED. AUREUM DOES NOT GUARANTEE THAT ANY OUTPUT IS ACCURATE, COMPLETE, OR WILL ACHIEVE ANY SPECIFIC RESULTS. CUSTOMER ACKNOWLEDGES THAT OUTPUTS ARE GENERATED BY GENERATIVE ARTIFICIAL INTELLIGENCE TOOLS AND MAY NOT BE PROTECTABLE UNDER APPLICABLE INTELLECTUAL PROPERTY LAWS, AND AUREUM HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OWNERSHIP OR PROTECTABILITY OF, OR APPLICABILITY OF INTELLECTUAL PROPERTY RIGHTS TO, SUCH OUTPUTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DEPLOY AI AGENT SOLUTION MAY PRODUCE OUTPUT FOR THIRD PARTIES WHICH RESEMBLES CUSTOMER OUTPUT BUT WHICH WAS CREATED USING DIFFERENT INPUT. EXCEPT FOR (I) BREACH OF SECTION 6, (II) CUSTOMER’S BREACH OF SECTION 2 OR SECTION 4, OR (III) EITHER PARTY’S INFRINGEMENT OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS (“EXCLUDED CLAIMS”), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY’S TOTAL CUMULATIVE AGGREGATE LIABILITY TO THE OTHER OR ITS AUTHORIZED USERS (IF ANY) IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED ONE HUNDRED DOLLARS ($100).
MISCELLANEOUS. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such Party, and any attempt by either Party to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Deploy AI Agent Solution or Software is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Aureum may from time to time amend or modify the terms and conditions of this Agreement and will at such time present the modified Agreement to Customer or otherwise notify Customer of the modified Agreement. Customer hereby acknowledges and agrees that Customer’s continued use of the Deploy AI Agent, Software, or any other functionality of the services thereafter constitutes Customer’s consent to the modified terms and conditions. . Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed.
Effective Date: Dec 3rd, 2023
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