Terms of Service

Entering into this Agreement

The Agreement

Customer and Elvity agree to the terms of these Terms of Service and enter into this Agreement effective upon the earlier to occur of Customer's first access to the Service or entry into an Order. If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company. By signing up, accessing, or using the Service, Customer indicates its acceptance of this Agreement and agrees to be bound by the terms and conditions of this Agreement. Customer's use of the Service is also subject to Elvity's Privacy Policy.

Order of Precedence

In the event of a conflict between the elements of the terms and conditions making up this Agreement, the order of precedence is: (i) any Order and (ii) these Terms of Service.

Using the Service

Permitted Use

Subject to this Agreement, Customer may use the Service for its own business purposes in accordance with its Subscription. This includes the right to copy and use the Elvity Software (if any) and Documentation as part of Customer's Permitted Use. Customer will comply with the Documentation in using the Service.

Users

Customer may permit Users to use the Service on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users' actions through the Service and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Elvity upon learning of any compromise of User accounts or credentials.

Use of AI Features

Customer may submit Customer Data (including in the form of prompts or queries) to the artificial intelligence features of the Service and receive outputs from the AI Features. Elvity may not use Inputs or Outputs to train or otherwise improve AI Features, except solely for the benefit of Customer. Due to the nature of artificial intelligence and machine learning, information generated by AI Features may be incorrect or inaccurate. Service features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.

Customer Data

Use of Customer Data

Subject to this Agreement, Elvity will access and use Customer Data solely to provide and maintain the Service, Support and Professional Services under this Agreement. Use of Customer Data includes sharing Customer Data as Customer directs through the Service, but Elvity will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.

Usage Data

Elvity may collect Usage Data and use it to operate, improve and support the Service and for other lawful business purposes, including benchmarking and reports. However, Elvity will not disclose Usage Data externally unless it is de-identified so that it does not identify Customer, its Users or any other person and aggregated with data across other customers.

Privacy

Elvity's handling of personal data included in Customer Data is governed by Elvity's Privacy Policy or the Data Protection Addendum (DPA), if any.

Warranties

Mutual Warranties

Each party represents and warrants that: (i) it has the legal power and authority to enter into this Agreement, and (ii) it will use industry-standard measures to avoid introducing Viruses into the Service.

Performance Warranty

Elvity warrants that the Service will perform materially as described in the Documentation and Elvity will not materially decrease the overall functionality of the Service during the Subscription Term. Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Service.

Disclaimers

Except as expressly set out in this Agreement, each party disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement. Outputs are generated through machine learning processes and are not tested, verified, endorsed or guaranteed to be accurate, complete or current by Elvity.

Usage Rules

Compliance

Customer will comply with any Acceptable Use Policy (AUP) and represents and warrants that it has all rights necessary to use Customer Data with the Service and grant Elvity the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy or other rights.

High-Risk Activities and Sensitive Data

Customer: (i) will not use the Service for High-Risk Activities, (ii) will not submit Sensitive Data to the Service, and (iii) acknowledges that the Service is not designed for (and Elvity has no liability for) use prohibited in this Section.

Restrictions

Customer will not and will not permit anyone else to:

• Sell, sublicense, distribute or rent the Service (in whole or part), grant non-Users access to the Service or use the Service to provide a hosted or managed service to others
• Reverse engineer, decompile or seek to access the source code of the Service, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Elvity
• Copy, modify, create derivative works of or remove proprietary notices from the Service
• Conduct security or vulnerability tests of the Service, interfere with its operation or circumvent its access restrictions
• Use the Service to develop a product that competes with the Service
• Use the Service to attempt prompt injection or otherwise manipulate AI Features in a manner inconsistent with the intended operation

Fees

Payment

Customer will pay the fees described in the Order. The Service has different pricing plans, which are available at Elvity's pricing page. Customer will pay Elvity the applicable fees based on the Service tier and/or Customer's usage. Elvity may update Service pricing by giving at least 30 days notice to Customer, and the change will apply in the next Subscription Term.

Invoices

If an Order permits Customer to pay via invoice, unless the Order states otherwise, all amounts are due within 30 days after the invoice date. Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are nonrefundable except as expressly set out in this Agreement.

Suspension

Elvity may suspend Customer's access to the Service and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Suspension Event means: (a) Customer's account is 30 days or more overdue, (b) Customer is in breach of the Usage Rules or (c) Customer's use of the Service risks material harm to the Service or others.

Term and Termination

Subscription Terms

Each Subscription Term will last for an initial 12-month period unless the Order states otherwise.

Termination

Either party may terminate this Agreement (including all Subscriptions) if the other party: (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition or comparable proceeding.

Data Export and Deletion

During a Subscription Term, Customer may export Customer Data from the Service as described in the Documentation. After termination or expiration of this Agreement, within 60 days of request, Elvity will delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.

Intellectual Property

Reserved Rights

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Elvity's express rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to Elvity.

Feedback

If Customer gives Elvity feedback regarding improvement or operation of the Service, Support or Professional Services, Elvity may use the feedback without restriction or obligation.

Limitations of Liability

Liability Caps

Except as provided in this Section, each party's total cumulative liability for all claims arising out of or relating to this Agreement will not be more than amounts paid to Elvity in the 12 months preceding the event giving rise to liability.

Damages Waiver

Under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

Confidentiality

As recipient, each party will: (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser's prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

General Terms

Governing Law and Courts

The laws of the State of California govern this Agreement and any action arising out of or relating to this Agreement, without reference to conflict of law rules. The parties will adjudicate any such action in the state and federal courts located in Santa Clara County, California.

Entire Agreement

This Agreement is the parties' entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.