Modern.ai SaaS Terms and Conditions

These Modern.AI SaaS Terms and Conditions (the “SaaS T&Cs”) are hereby incorporated into the Purchase Order(s) or Statements of Work entered into by and between Modern AI LLC, a Florida limited liability company, with offices located at 261 NE 61 Street, Miami, FL 33137 (“Modern.ai”) and the customer specified in the applicable Purchase Order or Statement of Work (“Customer”).  These SaaS T&Cs set forth the terms and conditions pursuant to which Modern.ai will provide the Services to Customer. Modern.ai and Customer are referred to herein individually as a “Party” and, collectively, as the “Parties".

  1. Definitions. Capitalized terms have the meanings set forth in this section, or in the section where they are first used.some text
    1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify a User’s identity and authorization to access and use the Subscription Services.  
    2. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a Party. For purposes of this definition, the term “control” means direct or indirect ownership or control, through any applicable means, of more than 50% of the voting interests of the subject entity.
    3. “Agreement” means, collectively, the Purchase Order(s), these SaaS T&Cs, any SOW(s), Documentation, and any policies and documents incorporated in any of the forgoing by reference.
    4. “Customer Data” means, other than Output, all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or Users through or in connection with the Subscription Services.
    5. “Customer Systems” means the information technology infrastructure used by Customer and its Users to access and use the Subscription Services, including all computers, software, hardware, and networks, whether operated directly by Customer or through the use of third-party services.
    6. “Data Privacy Laws” means all federal, state, and municipal data protection and privacy laws and regulations applicable to the Processing of Personal Data under the Agreement, including, where applicable, (a) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020; (b) the Colorado Privacy Act; (c) the Virginia Consumer Data Protection Act; (d) the Connecticut Act Concerning Personal Data Privacy and Online Monitoring; (e) the Utah Consumer Privacy Act; (f) any other U.S. state privacy laws that are in effect or take effect during the Term; and (h) in each of the foregoing, all implementing regulations thereto and as each is updated, amended or replaced from time to time.
    7. “Documentation” means Modern.ai’s end user documentation relating to the Subscription Services as provided or made available by Modern.ai to Customer.  
    8. “Intellectual Property Rights” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) patents; (b) trademarks; (c) copyrights; (d) moral rights; (e) internet domain names and social media account or user names (including “handles”), whether or not trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not copyrights; (f) software; (g) rights of publicity; (h) rights of privacy; (i) all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws; and (j) all similar or equivalent rights or forms of protection, in any part of the world.
    9. “Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
    10. “Modern.ai Materials” means the Platform, Documentation, Modern.ai Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are provided or used by Modern.ai in connection with the Services or that otherwise comprise or relate to the Services or Modern.ai’s Systems. 
    11. “Modern.ai Systems” means the information technology infrastructure used by or on behalf of Modern.ai in providing the Subscription Services and performing the Support Services, including all computers, software, hardware, and networks, whether operated directly by Modern.ai or on its behalf through third-party service providers.
    12. “Output” means data and information that results when Customer Data and other data provided by Modern.ai is Processed in connection with the Subscription Services (using artificial intelligence and other algorithms) for the purpose of enhancing, revising, augmenting, or updating Customer Data as part of the normal operation of the Subscription Services.
    13. “Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household or as such term is otherwise defined in applicable Data Privacy Laws including definitions of “personal information”. For the avoidance of doubt, as used herein, Personal Data is limited to the Personal Data that the Parties’ Process in connection with the Agreement. 
    14. “Platform” means Modern.ai’s software as a service platform that provides data analytics to companies.
    15. “Process”, “Processing,” or “Processed” means any operation or set of operations which is performed upon data whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    16. “Professional Services” means implementation, integration, report adjustments, or other professional services which Moderin.ai agrees to provide to Customer in connection with the Subscription Services.  Professional Services excludes the Subscription Services and Support Services. 
    17. xp“Purchase Order” means Modern.ai’s standard Purchase Order entered into by the Parties which expressly incorporates these SaaS T&Cs, and specifies the applicable Fees, Subscription Term, and other terms applicable to the Subscription Services purchased by Customer.some text
      1. “Reports” means the overview/summary of metrics, analytics, and insights produced by the Subscription Services for Customer from the Customer Data and Output, including Report templates, methodology and the metrics used to create the Report.
      2. “SLA” means the Support and Service Level Addendum as attached to a Purchase Order.
      3. “Sensitive Personal Information” means (a) an individual’s social security, driver’s license, state identification card, or passport number; (b) an individual’s account log‐in, financial account, debit card, or credit card number in combination with any required security or access code, password, or credentials allowing access to an account; (c) an individual’s precise geolocation; (d) an individual’s racial or ethnic origin, religious or philosophical beliefs, or union membership; (e) the contents of an individual’s mail, email and text messages, unless the business is the intended recipient of the communication; or (f) an individual’s genetic data. Sensitive Personal Information also means (a) the processing of biometric information for the purpose of uniquely identifying an individual; (b) personal information collected and analyzed concerning an individual’s health; or (c) personal information collected and analyzed concerning an individual's sex life or sexual orientation.
      4. “Statement of Work” or “SOW” means a document executed by the Parties that describes Professional Services to be provided by Modern.ai to Customer in connection with the Subscription Services. 
      5. “Services” means, collectively, the Subscription Services, Support Services, and Professional Services.  The Services do not include any Third-Party Services.
      6. “Subscription Services” means Modern.ai’s provision of the Platform to Customer on a subscription basis. The Subscription Services do not include Professional Services or Support Services.
      7. “Subscription Term” means the period of time specified in the Purchase Order during which the Subscription Services are made available to Customer and its Users.
      8. “Support Services” means the support services provided by Modern.ai for the Subscription Services as set forth in the SLA. 
      9. “Third-Party Services” means any third-party products and communication services that interface with the Subscription Services, including, without limitation, Google BigQuery and CRM.
      10. “User” means an individual who is authorized by Customer to use or access the Subscription Services.
    18. Services.
      1. Subscription Services. During the Subscription Term and subject to Customer’s payment of the Fees and compliance with the Agreement, Modern.ai will make the Subscription Services available to Customer and Users as specified in the Purchase Order. 
      2. Customer Affiliates. Customer may also permit its Affiliates and their employees and contractors working for the benefit of Customer or such Affiliates to serve as Users, provided Customer remains responsible for such persons’ compliance with the Agreement. Alternatively, Customer Affiliates may purchase Subscriptions Services and Professional Services by executing a Purchase Order or Statement of Work hereunder that references the Agreement, and in each such case, all references in the Agreement to Customer will be deemed to refer to such Customer Affiliate for purposes of such Purchase Order or Statements of Work and such Affiliates will be responsible for their compliance with the terms of the Agreement.
    19. Service Levels and Support Services. Where the Purchase Order eressly includes and incorporates a SLA, the following terms apply. Modern.ai will use commercially reasonable efforts to (a) make the Subscription Services available in accordance with the service levels set forth in the SLA, and (b) provide the Support Services to Customer as set forth in the SLA.
    20. Professional Services.  Modern.ai will provide Professional Services as specified in the applicable Statement of Work(s).
    21. Restrictions.  Customer and Users will not, at any time, directly or indirectly: (a) access or use the Modern.ai Materials, except as expressly permitted by the Agreement; (b) copy, reproduce, distribute, or publicly display or perform the Modern.ai Materials; (c) modify, adapt, alter, translate or create derivate works based on any of the Modern.ai Materials; (d) sell, license, sublicense, lease, rent, loan, lend, distribute, assign, transfer or otherwise make available or allow the use of the Subscription Services for the benefit of any third party, including on or in connection with any time-sharing, service bureau, or other technology or service; (e) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Services; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the source code (or the underlying ideas, algorithms, structure or organization) from the Subscription Services or any component thereof; (g) remove or obscure any proprietary notices or labels from the Modern.ai Materials or Subscription Services; (h) access or use the Subscription Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; or (i) access or use the Modern.ai Materials for purposes of competitive analysis, the development, provision, or use of a competing service or product or any other purpose that is to Modern.ai’s detriment or commercial disadvantage.
    22. Changes.  Modern.ai reserves the right, in its sole discretion, to update and make any changes to the Modern.ai Materials and Subscription Services that it deems necessary or useful, provided that any such changes will not materially degrade the functionality of the Modern.ai Materials or the Subscription Services during the Subscription Term.
    23. Subcontractors. Modern.ai may subcontract the performance of any of its duties or obligations under the Agreement to any person. Modern.ai shall be responsible for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were those of Modern.ai and shall be responsible for all fees and expenses payable to any subcontractor.

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Suspension of Subscription Services. Modern.ai may temporarily suspend Customer’s (including Users’) access to the Subscription Services if Modern.ai reasonably determines that: (a) there is, or there is reasonably likely to be, a threat to the Modern.ai Materials caused by Customer; (b) Customer’s use of the Modern.ai Materials disrupts or poses a security risk to the Modern.ai Materials or to any other customer or vendor of Modern.ai; or (c) Customer, or any User, is using the Modern.ai Materials for fraudulent or illegal activities.  If Customer (including Users) is using the Subscription Services in a manner that, in Modern.ai’s reasonable judgment, causes or is likely to cause significant harm to Modern.ai or the Subscription Services or otherwise threatens the security, integrity or availability thereof, then Modern.ai may suspend Customer’s access to the Subscription Service. 

  1. Responsibilities.
    1. Customer Responsibilities. Customer is responsible and liable for: (a) all access to and use of the Subscription Services and Modern.ai Materials directly or indirectly, including by or through the Customer Systems; (b) the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (c) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Modern.ai Materials and Subscription Services and notifying Modern.ai promptly of any such unauthorized access or use; and (d) complying with all Laws applicable to the Agreement and Customer’s use of the Services, including Data Privacy Laws.
    2. Customer Responsibilities for Users.  Customer shall be responsible for the actions of Users in accessing and using the Services. Customer shall ensure that Users: (1) comply with the terms of this Agreement, including any restrictions on use set forth in Section 2.5 and (2) comply with all applicable Laws in accessing and using the Services.  Customer will be in breach of this Agreement if any User fails to comply with the obligations set forth in this Agreement and Customer will be liable to Modern.ai for any losses incurred because of the actions of its Users. 

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  1. Customer Warranties. Customer represents, warrants, and covenants to Modern.ai that: some text
    1. Customer will not upload any Sensitive Personal Information into the Subscription Service or otherwise make any Sensitive Personal Information available to Modern.ai and its employees; 
    2. Customer is authorized to provide the Customer Data to Modern.ai, including through the Subscription Services, and has obtained all consents, authorizations, or permissions required by others, including from Third Party Services;
    3. Customer’s use of the Services will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law, including any Data Privacy Laws; 
    4. Customer’s use of the Services will not cause Customer to violate any agreement with a third party;
    5. Customer’s provision of Customer Data to Modern.ai and the Subscription Services and Modern.ai’s Processing thereof will not violate Customer’s own applicable privacy policies and/or privacy notices; and
    6. Customer has all necessary rights and consents relating to the use of the Subscription Services in connection with Third-Party Services, including all necessary rights and consents required to permit the Subscription Services to integrate with, and transfer information from or to, such Third-Party Services.
  2. Customer Systems. Customer’s right to use Customer Systems is governed by the terms and conditions established by each Customer Systems’ provider with Customer directly.
  3. Use of Output and Reports. Customer acknowledges and agrees that it is solely responsible for evaluating the Output and Reports for accuracy and appropriateness, including by utilizing human review as appropriate.
  1. Personal Data.some text
    1. If Customer’s use of the Subscription Services involves Processing Personal Data and such Processing is governed by Data Privacy Laws, the following terms shall apply: some text
      1. Customer is disclosing Personal Data to Modern.ai only for the limited and specified purposes stated in the Agreement; 
      2. Modern.ai agrees to comply with applicable obligations under the applicable Data Privacy Laws and shall provide the same level of privacy protection as is required by such laws;
      3. Modern.ai grants Customer the rights to take reasonable and appropriate steps to help to ensure that Modern.ai uses the Personal Data transferred in a manner consistent with the Customer’s obligations under applicable Data Privacy Laws to the extent required under such laws;
      4. Modern.ai will notify Customer if it determines that it can no longer meet its obligations under the Data Privacy Laws;
      5. Customer may, upon reasonable notice, take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Data.
  2. Fees.some text
    1. Fees. Customer will pay Modern.ai the fees specified in the Purchase Order and SOW(s) (“Fees”).  All Fees are non-cancelable and non-refundable, except as may be expressly set forth in these SaaS T&Cs.   Customer will make all payments hereunder in U.S. dollars. Unless otherwise expressly specified in the Purchase Order, Modern.ai may increase the Subscription Services Fees by providing at least ninety (90) days written notice to Customer (“Price Increase”). Except for Third Party fees, in the event of a Price Increase, Customer may terminate any applicable Purchase Order by providing at least thirty (30) days’ notice prior to a Price Increase becoming effective.
    2. Invoicing and Payment. Except as otherwise specified in the Purchase Order or SOW, all Fees and any other amounts due under the Agreement will be invoiced in advance and are due net thirty (30) days from the invoice date.
    3. Fees for Third-Party Services. Customer is responsible for all fees and charges applicable to Third-Party Services.
    4. Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this section, Modern.ai may: (a) suspend Customer’s access to the Subscription Services pending payment of such overdue invoices; and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. 
    5. Taxes. The Fees do not include, and Customer is solely responsible for, all sales, use, excise, value added, customs fees, or other taxes or governmental assessments of any kind, relating to Customer’s purchases hereunder (“Taxes”), except for any taxes based on Modern.ai’s income. 
  3. Proprietary Rights.some text
    1. Customer Data. As between Modern.ai and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Modern.ai a non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable, worldwide license to reproduce, distribute, compile, manipulate, create derivative works of and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as needed for Modern.ai to: (a) provide the Services; (b) improve and modify the Services (including for training or retraining artificial intelligence models); (c) to aggregate information regarding the Customer Data and Customer’s use of the Subscription Services; and (d) conduct research for developing new services.
    2. Modern.ai IP. Modern.ai owns all right, title, and interest, including all Intellectual Property Rights, in and to the Modern.ai Materials and in and to all of Modern.ai’s proprietary technology (including software, hardware, products, processes, algorithms, methodologies, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Modern.ai in providing the Services to Customer (collectively, “Modern.ai IP”). Modern.ai IP includes any electronic or tangible work product, modifications, enhancements, or derivative works, including application programming interfaces (“API”) developed by Modern.ai for Customer in performing the Professional Services or Support Services. Except for the limited rights and licenses expressly granted under these SaaS T&Cs, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Modern.ai IP.
    3. Output and Reports. Customer and Modern.ai agree and acknowledge that Modern.ai’s provision of the Subscription Services may include the creation of Output and Reports. Modern.ai owns all right, title, and interest, including all Intellectual Property Rights, in and to the Reports and Output, exclusive of any Customer Data contained therein. Customer hereby grants to Modern.ai a non-exclusive, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data as necessary or useful to create such Output and Reports. Modern.ai hereby grants to Customer a non-exclusive, perpetual, irrevocable, fully paid-up, worldwide license to reproduce, distribute, modify, and otherwise use the Output and Reports for Customers’ internal business purposes.  
    4. Service and Model Data. As Customer (including its Users) interacts with the Subscription Services, Modern.ai and the Subscription Services (a) collect data pertaining to the performance of the Subscription Services as well as query logs, metadata and other data and information related to the operation and support of the Subscription Services and Customer and Users’ use thereof (“Service Data”), and (b) process Customer Data by artificial intelligence and other algorithms to create artificial intelligence models (“Model Data”). Notwithstanding anything else to the contrary herein, provided that the Service Data is aggregated and anonymized, the Parties agree that Modern.ai is free to use the Service Data and Model Data that does not identify Customer or Customer Data in any manner. 
    5. Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Modern.ai specifically with respect to the Moderin.ai Materials or Services (“Feedback”). Customer grants Modern.ai a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
    6. Advertisement Rights. Customer grants Modern.ai a non-exclusive, worldwide, royalty-free license to use Customer’s name, logo, trademarks, and any other identifying marks, as well as any images or other media provided by Customer, for the purpose of marketing, promoting, and advertising Modern.ai’s products and services. This includes, but is not limited to, use in press releases, case studies, brochures, websites, and other promotional materials. Modern.ai agrees to comply with any reasonable trademark usage guidelines provided by Customer.
  4. Confidentiality.some text
    1. Confidential Information. In connection with the Services provided hereunder, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party designated as confidential or that reasonably should be understood to be confidential given the nature of the information disclosed or the circumstances of disclosure, including proprietary technology, trade secrets, business and marketing plans, business processes, and technical information. Without limiting the foregoing, the Modern.ai Materials and Modern.ai’s security information are and will remain the Confidential Information of Modern.ai.
    2. Exclusions to Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to the public, (b) was known to the Receiving Party prior its disclosure by the Disclosing Party, (c) is received from a third party without a breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
    3. Obligations of Confidentiality. The Receiving Party will (a) not use the Disclosing Party’s Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with the Agreement; (b) except as may be permitted by and subject to its compliance with Section 7.4 (Compelled Disclosure), not disclose or permit access to Confidential Information other than to its personnel, auditors, accountants, attorneys or advisors who are subject to confidentiality obligations just as protective of the Confidential Information as the terms of this Section 7; or (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information but in no event less than a reasonable standard of care.
    4. Compelled Disclosure.  This Agreement shall not restrict the Receiving Party’s disclosure of Confidential Information of the Disclosing Party pursuant to any order, subpoena, regulation, or process of law; provided, that the Receiving Party shall give prior, written notice to the Disclosing Party (to the extent it is legally permitted) so that the Disclosing Party may seek an appropriate protective order or other remedy, and the Receiving Party shall cooperate with the Disclosing Party to obtain such protective order.  To the fullest extent permitted by law, the Receiving Party will continue to protect as confidential and proprietary all information disclosed pursuant to this Section 7.4.
    5. Survival.  The obligations of confidentiality set forth in this Section 7 shall survive the expiration or any termination of the Agreement as follows:  (a) with respect to Confidential Information that constitutes a trade secret, for so long as such information is deemed a trade secret under applicable law; and (b) with respect to all other Confidential Information, the shorter period of three (3)  years after the expiration or any termination of the Agreement or until such information no longer qualifies as confidential hereunder.

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  1. Warranty Disclaimer.some text
    1. DISCLAIMER OF WARRANTIES. THE MODERN.AI MATERIALS AND SOFTWARE SERVICES ARE PROVIDED “AS IS” AND MODERN.AI HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MODERN.AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MODERN.AI MAKES NO WARRANTY OF ANY KIND THAT THE MODERN.AI MATERIALS, SOFTWARE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (INCLUDING THIRD-PARTY SERVICES), OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. MODERN.AI STRICTLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES.

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  1. Indemnification.some text
    1. Indemnification by Customer. Customer will indemnify and defend Modern.ai and Modern.ai’s Affiliates from and against any and all demands, claims, losses, liabilities, or damages (“Losses”) incurred by Modern.ai or Modern.ai’s Affiliates resulting from any claim, suit, action, or proceeding (“Action”) by any third party (including any Third Party Service) that arises out of or results from, Customer’s violation of its obligations under Section 3. Customer shall grant Modern.ai the option to have sole control of the defense and settlement of the Action. If Customer controls the defense, it will not agree to any settlements without Modern.ai’s written agreement.
  2. Limitations of Liability.some text
    1. Limitations on Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, (B) DAMAGES BASED ON LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THE AGREEMENT, OR (C) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT THAT EXCEEDS THE TOTAL OF THE AMOUNTS PAID TO MODERN.AI IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ACTION. IN EACH CASE, SUCH LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE ACTION IS BASED.
    2. Exceptions. The exclusions and limitations in Section 10.1 will not apply to: (a) Customer’s indemnification obligations under Section 9; or (b) Customer’s breach of Section 3.
  3. Term and Termination.some text
    1. Term. The Agreement will commence upon the Parties’ execution of the Purchase Order and continue in effect for as long as any Purchase Orders or Statements of Work are in effect (the “Term”).
    2. Renewal of Subscription Terms. Except as otherwise specified in the Purchase Order, the Subscription Term will automatically renew for additional terms of equal length to the immediately preceding term (each a “Renewal Subscription Term”), unless either Party gives the other written notice at least thirty (30) days before the end of the then-current Subscription Term. Except as expressly provided in the Purchase Order, discounts, promotions, and/or special pricing will not apply to any Renewal Subscription Term and Modern.ai’s applicable list prices will apply to the Subscriptions Services during any Renewal Subscription Term.
    3. Termination for Cause. In addition to any right of termination set forth elsewhere in the Agreement, either Party may terminate the Purchase Order or SOW, by written notice to the other Party effective as of the date specified in such notice, if the other Party materially breaches the Agreement and such breach either: (a) cannot be cured; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof. In addition to any other right of termination set forth herein, Modern.ai may terminate the Purchase Order or SOW by written notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer’s receipt of written notice of nonpayment. If Customer terminates the Purchase Order pursuant to this Section 11.3, Customer will be entitled to a pro-rata refund of the applicable Fees set forth in the Purchase Order for the portion of the remainder of the Subscription Term that have been pre-paid and is subject to the material breach. Termination of the Purchase Order or SOW by Modern.ai pursuant to this Section 11.3 does not relieve Customer of the obligation to pay any Fees due and owing to Modern.ai.
    4. Effect of Termination. Except as otherwise provided in the Agreement, upon and after the termination or expiration of the Agreement for any reason: (a) Customer will cease all use and access to the Subscription Services and Modern.ai Materials; and (b) Customer will pay to Modern.ai all undisputed charges and amounts due and payable to Modern.ai.
    5. Surviving Provisions. The provisions of these SaaS T&Cs that, by their nature and content, should survive the termination or expiration of the Agreement in order to achieve the fundamental purposes of the Agreement will so survive and continue to bind the Parties. Without limiting the generality of the foregoing, the Parties specifically acknowledge that the following provisions will survive and continue to bind the Parties: Sections 2.5, 3, 4, 6, 7, 8, 9, 10, 11.5, and 12.
  4. General Terms.some text
    1. Force Majeure. Neither Party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a Party that make it impossible or commercially impracticable for such Party to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the party failing to perform), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
    2. Relationship of the Parties. Nothing herein will be construed to create an agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. The Parties will be independent contractors pursuant to the Agreement. Neither Party hereto will have any express or implied right, power, or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third-party.
    3. Notices. Ordinary day-to-day operational communications may be conducted by email.  All other notices, consents, claims, demands, waivers, and other communications required hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Purchase Order or SOW (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 12.3.
    4. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.
    5. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in full force and effect.
    6. Assignment. Customer shall not assign, delegate, or otherwise transfer the Agreement or any rights or obligations herein under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Modern.ai.  Any attempted assignment in contravention of this provision will be null and void and of no force or effect.  Modern.ai may assign the Agreement without Customer’s consent, to an Affiliate or in connection with a merger, consolidation, reorganization, acquisition, or other transfer of all or substantially all of its assets with respect to the Subscription Services or voting securities to a successor.  This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.
    7. Governing Law; Dispute Resolution. This Agreement shall be governed by the law of the State of Florida, without regard to its conflict of law provisions. If any dispute arises under the Agreement, the Parties agree that Modern.ai shall have the option to submit the dispute to binding arbitration in Miami-Dade County, Florida, conducted under the rules of the American Arbitration Association before a single-arbitrator ("Arbitration Option") or in the US District Court for the Southern District of Florida, or if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Miami-Dade County, and any appellate court from any thereof. The Parties further agree that if any dispute arises under the Agreement that Customer must submit the dispute through the Arbitration Option only. All arbitration proceedings shall be confidential. Neither Party shall disclose any information about the evidence produced by the other Party in the arbitration proceedings, except in the course of judicial, regulatory, or arbitration proceeding, or as may be demanded by government authority. Before making any disclosure permitted by the preceding sentence, a Party shall give the other Party reasonable advance written notice of the intended disclosure and an opportunity to prevent disclosure. Only evidence that is directly relevant to the issues may be presented the arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, Modern.ai may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Florida or any other state where personal jurisdiction exists over Customer, at Modern.ai’s sole discretion.
    8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
    9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.5 and Section 3.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    10. Entire Agreement. These SaaS T&Cs, together with the Purchase Order, SOW(s), Documentation, and any policies and documents incorporated in any of the forgoing by reference, contain the entire agreement of the Parties and supersedes any prior or present understanding or communications, both written and oral, with respect to such subject matter. In the event of a conflict between these SaaS T&Cs, the terms contained in the Purchase Order shall control.

Modification and Amendments. Modern.ai may modify or change these SaaS T&Cs from time to time in its sole discretion, effective immediately 

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