Clarifai Terms of Service
EFFECTIVE DATE: December 22, 2022 to go into effect January 1, 2023
Welcome to Clarifai! These Clarifai Terms of Service (“Terms”) are a binding contract between you and Clarifai, Inc. (“Clarifai,” “we” and “us”) that sets forth your rights and responsibilities as a user of our Services. “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are agreeing to these terms on behalf of a party that you represent (e.g., your employer, your business or another entity), you represent and warrant that: (i) you have full legal authority to bind such other party to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at: email@example.com. Clarifai Community is an online community for cloud-based AI models, workflows, applications, datasets, UI modules, and other materials (“Community Content”) which is hosted by Clarifai, Inc. (“Clarifai,” “we” or “us”). Although Clarifai hosts the Clarifai Community on its website, the Community Content may be offered, developed or maintained by either Clarifai, you or third parties. Your selection or use of Community Content is subject to these terms, and may require you to agree to additional terms as provided by the third-party licensor of that Community Content (“Content Contributor”).
While we may provide information, tools or third-party links for your convenience, you are ultimately responsible for independently determining whether any Community Content is appropriate for your use.By using Clarifai Community, you are agreeing to be bound by these Terms. If you do not agree to these Community Terms, do not use or access Clarifai Community.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 14. IT AFFECTS HOW DISPUTES ARE RESOLVED. BY AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE CLARIFAI’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 14.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access our Services, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these terms by clicking “I agree” (or similar button or checkbox) at the time you register for a Service, create an account or place an order. By accessing and/or using the Services, you are also agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
1. Applicability of these Terms.
1.2. Additional Terms. Some Services may be subject to additional terms set forth in a Master Services Agreement, Order Form or other negotiated terms between you and us (the “Additional Terms”), which Additional Terms are incorporated as if set forth herein. In the event of a conflict between these Terms and the Additional Terms, the Additional Terms will govern unless otherwise specified therein.
2. Eligibility and Registration.
2.1. Eligibility Requirements. Before you use our Services, you must ensure that such use is in compliance with all Laws applicable to you. Your right to access the Services is revoked to the extent your use thereof is prohibited or to the extent our provision thereof conflicts with any applicable Law, rule or regulation. If your account has previously been removed from using the Services, you are not eligible to create a new Account to access the Services. You are responsible for making these determinations before using the Services.
2.2. Age Requirement for Users. The Services are not targeted towards, nor intended for use by, anyone under the age of majority in any jurisdiction. By using the Services, you represent and warrant to us that you are 18 years of age or older, or at least the age of majority in the jurisdiction where you are located.
2.4. Account Deactivation. We may, in our sole discretion, refuse to provide or continue providing the Services to any person or entity and change eligibility criteria at any time, including if you fail to comply with these Terms. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Services at any time at our sole discretion.
2.5. Your Responsibilities. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, any third party (including your contractors or agents), your licensees, or your customers. You are responsible for notifying your employees, agents, and others related to your use of the Services of the provisions of these Terms, including where these Terms are binding on them.
3. Services Subscription. You may access and use the Services, as applicable, only in accordance with these Terms, Our Policies, any applicable documentation, any agreed Additional Terms and applicable Laws. You will:
- be solely responsible for all use of the Services and documentation under your account, including the quality and integrity of Your Content and any other information made available to us by or for you through the use of the Services under these Terms and each software application or service you make available to your end users that interfaces with the Services (each, a “Customer Application”);
- not rent, lease, distribute, sell, sublicense, transfer or provide access to the Services to any third party (except to make the Services available to your end users in connection a Customer Application as permitted under these Terms) or offer them on a standalone basis;
- be solely responsible for all acts, omissions and activities of anyone who accesses or otherwise uses any Customer Application (“End User”), including End Users’ compliance with these Terms, the applicable documentation, Our Policies and any agreed Additional Terms;
- not interfere with or otherwise circumvent mechanisms in the Services intended to limit your use;
not reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except to the extent expressly permitted by applicable Law (and then only upon advance notice to us);
- not remove or obscure any proprietary or other notices in any Service;
- not use the Services for competitive analysis or to develop or build similar or competitive products or services, whether directly or indirectly through a third party;
- use the Services to develop foundation models or other large scale models that compete with Clarifai
- use any method to extract data from these services, including web scraping, web harvesting, or web data extraction methods, other than as permitted through the API;
- not publicly disseminate information regarding the performance of the Services; (i) not introduce into Our Technology any Malicious Code or content that is illegal under any applicable law; or
- not encourage or assist any third party to do any of the foregoing. Our Services are not intended for us in, or association with, the operation of any hazardous environments or critical systems that may lead to serious bodily injury or death or cause environmental or property damage, and you are solely responsible for liability that may arise in connection with such use.
4. Proprietary Rights.
4.1. Clarifai’s Technology. We or our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Services) and all other Clarifai Materials provided by us to you. Except for the licenses expressly set forth herein, you obtain no rights under these Terms from us, our affiliates or our licensors to the Services or any related intellectual property rights owned or licensed by us.
4.2. Your Content. You consent to our use of Your Content to provide the Services to you. You also agree and instruct that we may use and store Your Content to maintain and provide the applicable Services and to develop and improve the Services and Our Technology.
4.3. Your Data Compliance Obligations. You represent and warrant to us that:
- you have obtained all necessary rights, releases, consents and permissions to submit all Your Content in connection with the Services and to grant the rights granted to us in these Terms, including obtaining any necessary consents required by applicable Laws to process and control Your Content for the purposes contemplated by these Terms;
- you have provided any legally required privacy notices to end users of your products or services that use our Services, including ensuring such notices include accurate and complete disclosures concerning the processing activities contemplated by these Terms that comply with applicable Laws;
- you have obtained any required verifiable parental consent under the Children’s Online Privacy Protection Act (COPPA) or similar Laws; and
- Your Content and its submission and use as you authorize in these Terms does not contain any Malicious Code and will not violate
(i) any Laws,
(ii) any third-party intellectual property, privacy, publicity or other rights, or (iii) any of your or any third party’s policies or terms governing Your Content. We assume no responsibility or liability for Your Content, and you are solely responsible for Your Content and the consequences of submitting and using it with the Services.
4.4. Feedback. If you provide any Feedback to us concerning the functionality or performance of the Services (including identifying potential errors and improvements), you hereby assign to Clarifai all right, title and interest in and to the Feedback, and Clarifai is free to use such Feedback without payment or restriction.
4.5. Trademarks. You grant us permission to include your name, logos, and trademarks in our promotional and marketing materials and communications.
4.6. Third Party Software Products. Third-party software products are licensed to you by Clarifai subject to the terms and conditions of any third-party software manufacturer or developer license agreement applicable to the particular third-party software product. As the third-party software products are created, developed, and provided by a third-party, Clarifai can only provide such license rights as permitted by the third party.
4.7. Open Source Materials. The Services may contain open source materials. You acknowledge that specific terms required by those open source materials may apply to their use. Clarifai shall make reasonable efforts to include these terms in applicable documentation; however, these terms will not: (a) impose any additional restrictions on your use of the Services, or (b) negate or amend Clarifai’s responsibilities with respect to the Services.
5. Payments and Billing.
5.1. Payment and Payment Processors. We use third-party payment processors (“Payment Processors”) to bill you through the payment accounts linked to your Account (your “Billing Information”). The processing of payments may be subject to the terms, conditions and policies of the Payment Processors in addition to these Terms. We are not responsible for acts or omissions of the Payment Processors. You will pay all fees set forth in Order Forms (the "Fees"). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, Clarifai may increase the Fees upon renewal of each Order Form subscription term by providing written notice to Customer at least forty-five (45) days prior to the commencement of the applicable renewal subscription term.
5.2. Your Billing Information. You must provide current, complete and accurate information for your Account and Billing Information, and must promptly update all such information in the event of changes (such as a change in billing address, credit card number, or credit card expiration date). You must promptly notify us or our Payment Processors if your payment method is canceled (e.g., for loss or theft) or otherwise inoperable. Changes to such information can be made in your account settings.
5.3. Billing. By agreeing to these Terms and using the Services, you agree to be billed on a recurring basis and to be automatically charged by us or our Payment Processors using your Payment Methods upon invoicing. If your Payment Method or payment of fees is subject to other terms and conditions, as set forth in Order Forms, invoices or otherwise, then those other terms and conditions apply in addition to these Terms. You may also be billed an amount up to your current balance at any time to verify the accuracy of your account information. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Services at any time at our sole discretion, including for nonpayment, late payment, or failure to charge your Payment Methods upon invoicing.
5.4. Taxes. You are responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to your purchase of the Services, including but not limited to national, state or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, "Taxes"). Unless otherwise stated, our pricing policies do not include and are not discounted or enhanced for any such Taxes. If we become obligated to collect or pay Taxes in connection with your purchase of the Services, those Taxes will be invoiced to you as part of a billing process or collected at the time of purchase. In certain states, countries and territories, we may determine if your purchase of Services is subject to certain Taxes, and if so, may collect such Taxes and remit them to the appropriate taxing authority. If you believe that a given Tax does not apply or that some amount must be withheld from payments to us, you must promptly provide us with a tax certificate, withholding receipt, tax identifier (e.g., VAT ID) or other adequate proof, provided such information is valid and sufficiently authorized by all appropriate taxing authorities. You must also provide us with any tax identification information that is necessary for us to comply with our tax obligations, as we determine from time to time. You will be solely responsible for any misrepresentations made or non-compliance caused by you regarding Taxes, whether with respect to us or other parties, including any penalties, fines, audits, interest, back-payments or further taxes associated with such misrepresentations or non-compliance.
6. Third-Party Products and Services. The Services may include links to third-party websites, services or other resources on the Internet, and third-party websites, services or other resources may include links to our Services as well. When you access third-party resources on the Internet, you do so at your own risk. These third-party resources are not under our control, and we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such resources. The inclusion of any such link does not imply our endorsement or any association between us and any third party. You may also choose to use or procure third-party products or services in connection with our Services. Your receipt or use of any third-party products or services (and the third parties’ use of any of Your Content) is subject to a separate agreement between you and the third-party provider. We disclaim all liability and responsibility for any third-party products or services (whether support, availability, security or otherwise) or for the acts or omissions of any third-party providers or vendors, and we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third-party resource.
7.1. Definition. To the extent you receive or possess any nonpublic information from us that is designated confidential or, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, such information is our “Confidential Information” and must be handled according to these Terms. Confidential Information includes but is not limited to: (a) nonpublic, confidential, proprietary or competitively sensitive information, including information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (b) the existence and content of our discussions or negotiations with you regarding your Account and/or use of the Services. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt of such information from us; (iii) is received from a third party who did not acquire or disclose the information by a wrongful or tortious act or by violating the rights of us or third parties; or (iv) can be shown by documentation to have been independently developed by you without reference to our Confidential Information.
7.2. Confidentiality Obligations. You may not use Confidential Information except in connection with your use of the Service as permitted under these Terms or as separately authorized in a signed writing by us. You agree to not disclose Confidential Information (i) during the Subscription Term; or (ii) after you cease using the Services and these Terms otherwise no longer apply. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, including at least the measures you take to protect your own confidential information of a similar nature.
7.3. Beta Releases. From time to time, we may invite you to try new products or services that are not generally available (each such trial invitation, a “Beta Release”). You may accept or decline any such trial in your sole discretion. Any Beta Release will be designated as alpha, beta, pilot, limited release, developer preview, non-production or other pertinent description. A Beta Release is provided for evaluation purposes only and not for production use, is not supported, may contain bugs or errors, and may be subject to additional terms. Clarifai may discontinue a Beta Release at any time in its sole discretion. Clarifai owns all rights, title and interest, including all intellectual property rights, in and to all Beta Releases and Feedback on Beta Releases.
8. Security and Data Privacy.8. Security and Data Privacy.
8.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect your data from unauthorized access, destruction, use, modification or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications.
8.3. GDPR Data Processing Addendum. If you are in the EU, UK, Switzerland or are otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or equivalent legislation in the UK or Switzerland you can find the Clarifai Data Processing Addendum at Clarifai Data Processing Addendum.
8.4. Your Security Obligations. You will utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. You are solely responsible for any unauthorized access to your Account, and must notify Clarifai immediately of any such unauthorized access upon becoming aware of it.
8.5. Security Incidents. You will notify Clarifai if and when you learn of any security incidents or breaches affecting the Services, including unauthorized access to your Account or Account credentials, and will aid in any investigation or legal action that is taken by authorities and/or Clarifai to investigate and cure the security incident or breach to the extent caused by your Account or your use of the Services. You may have additional obligations if you have agreed to a Data Processing Addendum with us, which are contained therein.
8.6. Feedback. If you provide any feedback to us concerning the functionality or performance of the services offered by Clarifai (including identifying potential errors and improvements) (collectively, “Feedback”), you hereby assign to Clarifai all right, title and interest in and to the Feedback, and Clarifai is free to use such Feedback without payment or restriction.
8.7. Feedback. If you provide any feedback to us concerning the functionality or performance of the services offered by Clarifai (including identifying potential errors and improvements) (collectively, “Feedback”), you hereby assign to Clarifai all right, title and interest in and to the Feedback, and Clarifai is free to use such Feedback without payment or restriction.
9. Temporary Suspension.
9.1. Suspension. We may suspend your right to access or use any portion of the Services immediately upon notice to you if we determine: (a) you or your End User’s use of the Services (i) poses a security risk to the Services or any third party; (ii) could adversely impact our systems, the Services or the systems or content of any other Clarifai customer; (iii) could subject us, our affiliates or any third party to liability; or (iv) could be fraudulent; (b) you are, or any End User is, in breach of these Terms; (c) you are in breach of your payment obligations under Section 5; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
9.2. Effect of Suspension. If we suspend your right to access or use any portion or all of the Services: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under any service level agreements for the period of the suspension.
10.1. Term. These Terms, as may be updated from time to time, are effective as of the Effective Date continue until terminated in accordance with Section 10.2 (Termination).
10.2.1. Termination By You. You may terminate these Terms for any reason by providing us notice and closing your account for all Services by emailing firstname.lastname@example.org.
10.2.2. Termination by Clarifai. We may terminate or suspend your Account (and any accounts we determine are related to your Account) and your access to the Services should we have any reason to believe you, your Content or your use of the Services violates our Terms.
10.2.3. We May Discontinue the Services. Clarifai reserves the right, in our sole discretion, to change, suspend, discontinue or terminate access to any or all of the Services provided to you or these Terms at any time, for any reason, with or without notice. We will not be liable to you for the effect that any changes to the Services or these Terms may have on you.
10.3. Survival. All provisions of these Terms which by their nature should reasonably be expected to survive termination will survive termination, including Sections 4 (Proprietary Rights), 5 (Payments and Billing), 7 (Confidentiality), 8 (Security and Data Privacy), 10 (Termination), 12 (Indemnification), 13 (Limitation of Liability), 14 (Dispute Resolution and Arbitration) and 15 (Miscellaneous Provisions).
11. Warranty Disclaimer. THE SERVICES, INCLUDING WITHOUT LIMITATION ANY CONTENT DELIVERED AS A PART THEREOF, ARE PROVIDED ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. CLARIFAI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND SERVICES AND ALL CONTENT DELIVERED IN CONNECTION THERETO, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE; OR (C) ANY WARRANTY OR GUARANTY RELATING TO AVAILABILITY, ACCURACY, ERROR RATE, SYSTEM INTEGRITY OR UNINTERRUPTED ACCESS. WE DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
12.1. Indemnification by Us. We will defend you from and against any third-party claim, demand, suit or proceeding alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”). We will indemnify you for any Losses finally awarded by a court of competent jurisdiction or settlement amounts approved by us for an Infringement Claim, provided that we have received from you (i) prompt written notice of the Infringement Claim; (ii) reasonable assistance in the defense and investigation of the Infringement Claim, including providing us a copy of the Infringement Claim, all relevant evidence in your possession, custody or control, and cooperation with evidentiary discovery, litigation and trial, including making witnesses within your employ or control available for testimony; and (iii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of the Infringement Claim. If your use of the Services has become, or in our opinion is likely to become, the subject of an Infringement Claim, we may at our expense: (a) procure for you the right to continue using the Services as set forth in these Terms; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim and refund you any unused pre-paid fees. We will have no liability or obligations under this Section 12.1 with respect to any Infringement Claim (1) arising out of your use of the Services in breach of these Terms; (2) arising out of the combination, operation or use of the Services with other applications, hardware, products or services where the Services would not themselves be infringing; or (3) arising from your continued use of the Services after we have notified you that such use is infringing (the foregoing, collectively, the “Excluded Claims”). We will have no liability in respect of Infringement Claims related to free services.
12.2. Indemnification by You. You are responsible for your use of the Services, and you will defend, indemnify and hold harmless us and our employees, officers, directors, agents, contractors, and representatives from all Losses (including reasonable attorneys' fees and costs) that arise from or relate to: (i) your or any End Users’ breach of Section 3 (Your Services Subscription); (ii) a Customer Application, including, without limitation, any claims that a Customer Application, or your or any End User’s use of a Customer Application, infringes or misappropriation of a third party’s intellectual property rights (including personality, publicity or privacy rights); (iii) breach of these Terms or violation of applicable Law by you; (iv) your gross negligence or willful misconduct; (v) Your Content (including your making Your Content available to others through the Services); or (vi) any claim that your access to or use of the Services infringes any third party’s rights, including any Excluded Claim but not including any claims for which we indemnify you under Section 12.1 above. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.
13. Limitation of Liability.
13.1. Consequential Damages Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, GOODWILL, LOST OPPORTUNITY COSTS, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEBSITE AND SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
13.2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR TO THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY YOU UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM.
13.3. Risk Allocation. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended to and does allocate the risks between the parties under these Terms. This allocation is an essential element of the basis of the bargain between you and us. Each of these provisions is severable and independent of all other provisions of these Terms. The limitation in this section will apply even if any limited remedy fails for its essential purpose.
14. Dispute Resolution and Arbitration.
14.1. Arbitration. In the interest of resolving disputes between you and Clarifai in the most expedient and cost-effective manner, and except as described in Section 14.7, you and Clarifai agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms, if applicable. You understand and agree that, by entering into these Terms, you and Clarifai are each waiving the right to a trial by jury or to participate in a class action or class arbitration.
14.2. Arbitration Rules. Any arbitration between you and Clarifai will be administered by a sole arbitrator in accordance with JAMS Alternative Dispute Resolution Services (with any successor organization, “JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). The JAMS rules and filing forms are available online at http://www.jamsadr.com/. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. Because your contract with Clarifai, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted.
14.3. Arbitration Requirements. Any arbitration hearing will take place at a location to be agreed upon in Manhattan, New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a non-appearance-based telephone hearing. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Clarifai for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
14.4. Enforceability. If any portion of this Section 14 is found to be unenforceable, then that portion will be null and void and the remainder of this Section 14 will reasonably remain in effect. In such an event, if Section 14 cannot reasonably remain in effect as a whole, you and Clarifai agree that the exclusive jurisdiction and venue described in Section 15.4 will govern any action arising out of or related to these Terms.
15. Miscellaneous Provisions.
15.1. Updates and Modifications. Clarifai reserves the right to update, change or otherwise modify these Terms at any time and in Clarifai’s sole discretion. If Clarifai updates these Terms, Clarifai may provide notice of such updates, such as by sending an email notification to the email address listed in your Account and/or updating the “Last Updated” date at the beginning of these Terms. Updates will be effective on the date specified in the notice. By continuing to use or access the Services after the date specified in the notice or updated Terms, you are agreeing to accept and be bound by the updated Terms and all of the terms incorporated therein. If you do not agree to the updated Terms, then you may not continue to use the Services and your sole and exclusive remedy is to deactivate your Account and otherwise discontinue use of the Website and/or Services.
15.2. General. These Terms, including all documents expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof. Any use of the singular will be reasonably construed as if it also includes the plural, and vice versa. If not already specified, any use of “including” or “such as” will be construed to mean “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself.
15.3. Assignment. You may not assign, transfer or delegate these Terms or any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempt to assign or transfer these Terms except as expressly provided above will be null and void. We may assign, transfer or delegate these Terms or our rights or obligations under these Terms without notice or consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for compliance with these Terms. Subject to the above, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
15.4. Governing Law. These Terms and any dispute related thereto are governed by the Laws of the State of New York without regard to conflict of laws provisions thereof. You and Clarifai submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under these Terms.
15.5. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 14 (Dispute Resolution and Arbitration) and 15.4 (Governing Law), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
15.6. Notice. You must send notices by certified U.S. Mail or by Federal Express (signature required and return receipt requested) to: Clarifai, Inc., 2801 Centerville Road 1F, Wilmington, DE 19808-1609. You agree to receive electronic notices from us, which will be sent by email to the primary email address then associated with your Account. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address associated with your Account is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
15.8. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint or to receive further information regarding use of the Services.
15.9. Removal of Community Content. At any time, Clarifai may remove Community Content from the Clarifai Community in accordance with its applicable policies, and Content Contributors may also update, modify or remove their own Community Content at any time.
15.10. User-Generated Community Content.
15.10.1. Responsibility for Community Content. You may post, import or upload Community Content while using the Clarifai Community. You are solely responsible for the content of, and for any harm resulting from, any Community Content that you post, upload, import, link to or otherwise make available via the Clarifai Community, regardless of the form of the content. We are not responsible for any public display or misuse of Community Content that you post, import or upload.
15.10.3. License Grant to Us. You grant to us and our successors and assigns a non-exclusive, worldwide, perpetual, and irrevocable right to use, reproduce, store, archive, parse, publish, perform and display your Community Content (in each case, as applicable,) in order to provide the Clarifai Community and to develop and improve the Services, the Clarifai Community and Our Technology. The license includes the right to make copies and backups, display your Community Content to other users (consistent with the permissions on your repository), parse it into a search index or otherwise analyze it on our servers and , share it with other users., and perform it. This license does not grant Clarifai the right to sell your Community Content or otherwise distribute your Community Content outside of our provision of the Clarifai Community and the Services.
15.10.4. License Grant to Other Users. Any Community Content you post or make available publicly, including issues, comments and contributions to other users’ repositories, may be viewed by other Clarifai Community users. By setting your repositories to be viewed publicly, you agree to allow others to view and work with Community Content in your repositories (this means that others can make their own copies of your Community Content from your repositories into repositories they control). If you set your Community Content Pages and repositories to be viewed publicly, you grant each user of Clarifai Community a non-exclusive, worldwide license to use, display and perform your Community Content through the Clarifai Community and to reproduce your Community Content solely in connection with the Services. You may grant further rights if you adopt a license. If you are uploading Community Content you did not create or own, you are responsible for ensuring that the Community Content you upload is licensed under terms that grant these permissions to other Clarifai Community users.
15.10.5. Moral Rights. You retain all moral rights to your Community Content that you upload, publish, post, import or submit to any part of the Clarifai Community, including the rights of integrity and attribution. However, you waive those rights and agree not to assert them against us to enable us to reasonably exercise the rights granted to us above, but not otherwise. To the extent these Community Terms are not enforceable under applicable law, you grant Clarifai the right to use your Community Content without attribution and to make reasonable adaptations of your Community Content as necessary to provide the Services.
15.11. Private Community Account.
15.11.1. Control. Through your Account you may create a public, private or organizational semi-private repository, which allows you to control access to your Community Content.
15.11.2. Confidentiality. The contents of a private account that you control are confidential to you and any users you share access with. Clarifai will protect the content of private accounts from unauthorized use, access or disclosure in the same manner that we would use to protect our own confidential information of a similar nature and in no event less than a reasonable degree of care.
15.11.3. Access. Clarifai may access, use, reproduce, store, archive or parse the content of your private accounts for security purposes, to assist the account owner with a support matter, to provide the Clarifai Community, to develop and improve the Services, the Clarifai Community and Our Technology, to maintain the integrity of our Services, to comply with our legal obligations, if we have reason to believe the content are in violation of the Law, with your consent, or as otherwise expressly permitted by these Community Terms. In addition, we may be compelled by law to disclose your Community Content and the contents of your private account.
15.12. Relationship of the Parties. The parties are independent contractors with respect to one another, and nothing in these Terms will create any association, partnership, joint venture or agency relationship between the parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
15.13. Force Majeure. Clarifai will not be liable for any delay or nonperformance under these Terms due to events which are beyond Clarifai’s reasonable control such as a strike, blockade, war, act of terrorism, natural disaster, quarantine, epidemic, pandemic, failure or diminishment of power or telecommunications or data networks or services or other unforeseen change in circumstances.
15.14. No Third-Party Beneficiaries. These Terms do not create any third-party beneficiary rights in any individual or entity that is not a party to these Terms.
16.1. “Affiliates” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting interests of the entity.
16.2. “Clarifai Materials” means the names, logos, trademarks, trade dress, arrangements, visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services and all other proprietary materials owned or licensed by Clarifai.
16.3. “Feedback” means comments, questions, ideas, suggestions, data or other feedback relating to the Services or Beta Releases.
16.4. “Laws” means all applicable state, local, federal and international laws, rules, regulations and conventions, including those related to data privacy and data security.
16.5. “Losses” means any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees).
16.6. “Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.
16.7. “Offerings” means our products, services (including online and/or mobile services), applications, software, SDKs, APIs, account portal, documentation, models and anything else we make available for use.
16.8. “Order Form” means any applicable ordering document between the parties that specifies mutually agreed upon rates for Services and other commercial terms.
16.10. “Our Technology” means the Services and any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate any Feedback.
16.11. “Services” means our Websites and Offerings.
16.12. “Websites” means our Clarifai owned or operated websites such as clarifai.com.
16.13. “Your Content” means data, images, video, audio, text, content, code or other materials of any type that you transfer, upload, submit or otherwise make available to us for processing, sharing with third parties, storage, hosting or use with the Services.