User Agreement

Last Modified: December 2, 2024

These Terms of Use (this "Agreement") are a binding contract between you or the entity you represent ("Customer," "you," or "your") and FunctionalMind, LLC ("Provider," "we," or "us"). This Agreement governs your access to and use of the Services. Services provided under this Agreement via the platform are for business or commercial, and not personal or consumer, use. 

Please read this Agreement carefully, as it (among other things) provides: (a) in Section 13 that you and the Provider will arbitrate certain claims instead of going to court and that you will not bring class action claims against the Provider; (b) in Section 3 that certain terms and conditions apply with respect to recurring subscription charges for certain paid account types.

The Provider's Privacy Policy, at https://functionalmind.ai/privacy (the "Privacy Policy"), describes the collection, use and disclosure of data and information by the Provider in connection with the Services. The Privacy Policy, as may be updated by the Provider from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclose practices set forth therein.

You understand and agree that the Services are not intended to store personal information and/or protected health information of any patient or other third party ("Protected Information"), and that you are not permitted to record or otherwise include any Protected Information of patients or other individuals in the platform or in any interaction with the chatbot. Protected Information is subject to the Health Insurance Portability and Accountability Act ("HIPAA") and other laws, rules and regulations. To ensure that you are not recording Protected Information about patients, all information, including but not limited to patient records and other documents, entered into the platform must be de-identified. You should remove all direct identifiers of a patient (such as a name, address, email address, or other obvious identifiers), as well as any and all other details that could identify an individual or otherwise be considered Protected Information. You hereby represent, warrant and covenant to Provider that you have removed and will remove any and all Protected Information from any data or information you input into or otherwise provide to the Services. 

THIS AGREEMENT TAKES EFFECT AT THE EARLIEST OF WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR ACCESS OR USE THE SERVICES (the "Effective Date")]. BY CLICKING ON THE "I ACCEPT" OR ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND IF ENTERING INTO THIS AGREEMENT FOR AN ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY; AND (C) ACCEPT THIS AGREEMENT ON YOUR BEHALF OR ON BEHALF OF THE ENTITY YOU REPRESENT IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY AND AGREE THAT YOU OR SUCH ENTITY, AS APPLICABLE, ARE LEGALLY BOUND BY ITS TERMS. 

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE "I DECLINE" BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. 

1. Access and Use.

2. Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants you a non-exclusive, non-transferable right to access and use the Services during the Term, solely for your internal business operations by Authorized Users under these terms and conditions. Provider shall provide you the necessary passwords and access credentials to allow you access to the Services. 

3. Use Restrictions. You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, or duplicate the Services, reproduce Training Data other than Customer Data, engage in model extraction, or otherwise attempt to derive or gain access to any source code, algorithm, model, model weights and parameters, or other underlying AI Technology or component of the Services, in whole or in part; (iv) access or use the Services or any AI Customer Output to develop, train, or improve any other AI Technology; (v) use web scraping, web harvesting, web data extraction or any other method to extract data from the Services or any AI Customer Output; (vi) remove any proprietary notices from the Services or Documentation; (vii) use the Services to create or generate AI Customer Output, or use AI Customer Output in a manner, that you know or should know infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; or (viii) submit, enter, post, or otherwise transmit or Process any Personal Information through the Services.

4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services and collect and compile data and information related to Customer's use of the Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You agree that Provider may use and make publicly available Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information. 

5. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP or Third-Party Products or the ability to use Training Data for any purpose.

6. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP, to Provider, or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Provider's provision of the Services to Customer or any other Authorized User is prohibited by applicable law; or (F) Customer is using the Services in material violation of Section 1(c); (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access and use the Services; or (iii) in accordance with Section 3 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.

7. Representations and Warranties; Customer Responsibilities.

8. You represent, warrant and covenant that, in connection with this Agreement or the Services, you will not and will not attempt to: (i) violate any laws, third party rights or our community guidelines and other policies; (ii) re-join or attempt to use the Services if the Provider has banned or suspended you; (iii) defraud Provider or another user; or (iv) use another user's account or allow another person to use your user account. Any illegal activities undertaken in connection with the Services may be referred to the authorities.

9. By using the Services, you hereby expressly agree that you are solely responsible for ensuring: (i) the protection and maintenance of the hardware and software on which you use the Services ("Equipment"); (ii) adequate safeguards are in place to protect the Equipment and the physical location in which the Services are used; (iii) that the Equipment is protected from theft, damage, corruption, alteration, unauthorized access, virus, malware etc.; (iv) that the Services are not accessed by any unauthorized individual; (v) compliance with applicable data privacy laws relating to your use of the Services, including HIPAA, the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and related regulations.

10. The Services and Documentation, and any information contained or entered therein, in no way replaces or substitutes your professional judgment or skill. You accept all risks arising from, and are solely responsible for, your professional, advisory, analytical and technical services including patient examination, diagnosis, prescription, treatment and personal injury or loss of life. Neither Provider nor its third-party service providers assume any responsibility for your actions. Without limiting the foregoing, you acknowledge and agree that any examples of potential diagnoses or other output generated using the artificial intelligence or machine learning functionality available on the Services may be incorrect, harmful, or biased, and you will not rely on or substitute such examples or output for your own professional judgment.

11. You represent, warrant, and covenant that (i) you own or otherwise have and will have all necessary rights, permissions, and consents in and relating to the Customer Data other than AI Customer Output) so that, as received by Provider and Processed in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law, and (ii) no Customer Data other than AI Customer Output contains or will contain any Personal Information. 

12. The Services and any Documentation made available through the Services are a non-device clinical decision support software application within the meaning of Section 520(o)(1)(E) of the federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 360j(o)(1), and the regulations and guidance issued by the U.S. Food and Drug Administration to implement that provision. By accessing or using the Services and Company Materials, you agree to only use the Services and Company Materials in this manner and solely for this purpose. The artificial intelligence or machine learning functionality available on the Services are intended for use only by healthcare providers and are not intended for use by the general public. If you are not a healthcare provider, you are not authorized to and will not access or use the Services. If you access or use Services, you attest that you are a healthcare provider and agree that the application is: (1) not intended to acquire, process, or analyze a medical image or a signal from an in vitro diagnostic device or a pattern or signal from a signal acquisition system; (2) intended for the purpose of displaying, analyzing, or printing medical information about a patient or other medical information; (3) intended for the purpose of supporting or providing recommendations to a health care professional about prevention, diagnosis, or treatment of a disease or condition; and (4) intended for the purpose of enabling such health care professional to independently review the basis for such recommendations that such software presents so that it is not the intent that such health care professional rely primarily on any of such recommendations to make a clinical diagnosis or treatment decision regarding an individual patient.

13. Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether that access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.

14. Use of AI Customer Output. You are solely responsible for (i) evaluating (including by human review) AI Customer Output for accuracy, completeness, and other factors relevant to your use before using, distributing, or relying on the AI Customer Output and (ii) your decisions, actions, and omissions in reliance or based on the AI Customer Output. 

15. Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Services confidential. You shall not sell or transfer them to any other person or entity. You shall promptly notify us about any unauthorized access to your passwords or access credentials.

16. Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, these Third-Party Products are subject to their own terms and conditions which may be presented to you for acceptance by website link or otherwise. The Services may also include or incorporate Third-Party Products licensed or provided by third parties that require us to pass through additional terms to you. You shall comply with all such applicable pass-through terms as made available on the website, through the Documentation, or otherwise, as such terms may be updated, modified, or added from time to time. We may add or remove Third-Party Products from time to time. If you do not agree to abide by the applicable terms for any Third-Party Products, then you should not install, access, or use these Third-Party Products or any Services that include or incorporate these Third-Party Products.

17. Fees and Payment; Cancellation. 

18. By signing up for any paid account and providing your payment information, you agree to pay us (and authorize our Payment Processor to charge you) the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Services. You acknowledge and agree that the payment method provided by you will be automatically charged the fees you incur in connection with your use of the Services and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Provider to make such charges. Your use of the Services may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Company from time to time, as indicated at the time of payment) and are non-refundable.

19. Cancellation of Services Account. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US OR BY CANCELLING YOUR ACCOUNT ON THE SITE. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION PERIOD. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION PERIOD, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT PERIOD, OR YOU WILL OTHERWISE BE CHARGED FOR THAT PERIOD'S SUBSCRIPTION. ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION PERIOD WILL APPLY TO THE FOLLOWING PERIOD.

20. Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Without limiting the foregoing, Provider IP is Provider's Confidential Information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure regarding Confidential Information are effective as of the date the Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, for any Confidential Information that constitutes a trade secret (as determined under applicable law), those obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as the Confidential Information remains subject to trade secret protection under applicable law. 

21. Privacy Policy. Provider complies with its privacy policy, available at https://functionalmind.ai/privacy ("Privacy Policy"), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

22. Intellectual Property Ownership; Feedback. 

23. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, for Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Provider hereby grants you a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Provider IP and Third-Party Products solely to the extent incorporated into and necessary for you to use and otherwise exploit the AI Customer Output solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein.

24. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data, except as set out in Section 8(a) with respect to Provider IP and Third-Party Products incorporated into AI Customer Output and subject to the license granted herein. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to (i) reproduce, distribute, and otherwise use and display the Customer Data and Process the Customer Data as may be necessary for Provider to provide the Services to Customer and (ii) use, modify, and adapt only aggregated and anonymized AI Customer Input and AI Customer Output to train, develop, adapt, modify, enhance, or improve the Services. To the extent you share Customer Data with other authorized users through the Services, you also hereby grant to each such user of the Services a non-exclusive license to access, view and/or download your Customer Data as permitted by the functionality of the Services and this Agreement. Except for the license granted in Subpart (ii) above, the licenses in this paragraph end when your Customer Data is deleted from our systems. You can delete your Customer Data individually or all at once by deleting your account (as described in Section 11). Notwithstanding anything in this Agreement to the contrary, unless prohibited by applicable law, we may delete Customer Data at any time if we determine that Customer Data violates the terms of this Agreement or that deletion is necessary to comply with applicable law.

25. Feedback. If you or any other Authorized User sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use that Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your Authorized Users to assign to us, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are have no obligation to acknowledge receipt of or use any Feedback.

26. Warranty Disclaimer. No Warranties. THE SERVICES AND AI CUSTOMER OUTPUT ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, INCLUDING ANY AI OUTPUTS, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. YOU ACKNOWLEDGE THAT, GIVEN THE NATURE OF THE SERVICES AND AI TECHNOLOGY, AI CUSTOMER OUTPUT (I) MAY BE INACCURATE, MISLEADING, BIASED, OR OFFENSIVE, (II) MAY BE THE SAME AS OR SIMILAR TO OUTPUT THE SERVICES GENERATE FOR OTHER CUSTOMERS, (III) MAY NOT QUALIFY FOR INTELLECTUAL PROPERTY PROTECTION, AND (IV) MAY BE SUBJECT TO THIRD PARTY TERMS, INCLUDING, AS APPLICABLE, OPEN SOURCE LICENSES.

27. Indemnification. You agree to indemnify and hold Provider and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees, (any of the foregoing, a "Claim") arising out of or relating to (a) your use or misuse of the Services, including without limitation any use of examples of diagnoses or other output generated using the artificial intelligence or machine learning functionality available on the Services, (b) your provision of professional, advisory, analytical and technical services including patient examination, diagnosis, prescription, treatment and personal injury or loss of life, (c) any violation of the Health Insurance Portability and Accountability Act ("HIPAA") or other laws, rules and regulations, including but not limited to the privacy laws of any location; or (d) breach of this Agreement, or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity; provided, however, that the foregoing does not obligate you to the extent the Claim arises out of Provider's willful misconduct or gross negligence. Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Provider, and you agree to cooperate with Provider's defense of these claims.

28. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDERWAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS PROHIBITED BY LAW, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

29. Term and Termination. 

30. Term. The term of this Agreement begins on the Effective Date and continues until terminated (the "Term"). 

31. Termination. In addition to any other express termination right set out in this Agreement:

32. You may terminate this Agreement at any time, for any reason or for no reason, by cancelling your account in the settings section on the site or by contacting us at [email protected]. 

33. The Company may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. 

34. Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before that expiration or termination, or entitle Customer to any refund. Following expiration or termination of this Agreement, Provider will permanently delete Customer Data from the Services and all systems Provider controls, unless otherwise required by applicable law. Notwithstanding the foregoing and for the avoidance of doubt, Provider shall not be obligated to delete, destroy, or disable any modifications, developments, or improvements to the Services resulting from Provider's use of Customer Data pursuant to Section 8(b)(ii).

35. Survival. This Section 10(d), Sections 4,5,6, 8,10, 12, and 13, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive termination.

36. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You are responsible for reviewing and becoming familiar with any modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.  

37. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.

38. Arbitration

39. Agreement to Arbitrate. This Section 13 is referred to herein as the "Arbitration Agreement." The parties agree that any and all controversies, claims, or disputes between you and Provider arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

40. Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).

41. Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 10. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Provider.

42. Venue. The arbitration shall be held in Broward County, Florida. If the value of the relief sought is $10,000 or less, you or Provider may elect to have the arbitration based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties.

43. Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Services but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.

44. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.

45. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.

46. Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 13(b) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 13(b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply. 

47. Miscellaneous. This Agreement, including the Order, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to [email protected] or via physical mail to our corporate headquarters address and must be delivered either in person, by email, certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.

48. Definitions. 

"Aggregated Statistics" has the meaning set out in Section 2(d).

"AI Customer Input" means information, data, materials, text, prompts, images, works, code, or other content that is input, entered, posted, uploaded, submitted, transferred, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services.

"AI Customer Output" means information, data, materials, text, images, code, works, or other content generated by or otherwise output from the Services in response to an AI Customer Input.

"AI Technology" means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.

"Authorized User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer under this Agreement and (ii) for whom access to the Services has been purchased hereunder.

"Confidential Information" has the meaning set out in Section 6.

"Customer Data" means /information, data, and other content, in any form or medium, that is submitted, entered, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services, and any outputs based thereon or derived therefrom, including AI Customer Input and AI Customer Output. Customer Data does not include Aggregated Statistics.

"Documentation" means Provider's manuals, guides and policies as made available from time to time. 

"Feedback" has the meaning set out in Section 8(d).

"Fees" has the meaning set out in Section 5.

"Losses" has the meaning set out in Section 10(a)(i).

"Order" means an ordering document or online order entered into between you and us that references this Agreement and describes the Services you are subscribing to.

"Personal Information" means information that: (a) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, an individual's internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers. Customer's business contact information is not by itself deemed to be Personal Information.

"Privacy Policy" has the meaning set out in Section 7.

"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works, process, weigh, perform statistical analysis, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.

"Provider IP" means the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data. Provider IP includes all modifications, enhancements, refinements, adaptations, customizations, improvements, and derivative works of the Services.

"Services" means the services provided by Provider under this Agreement.

"Service Suspension" has the meaning set out in Section 2(f).

"Term" has the meaning set out in Section 11(a).

"Third-Party Claim" has the meaning set out in Section 9(a)(i).

"Third-Party Products" means any products, technology, content, data, services, information, websites, or other materials that are owned by third parties and are included in, incorporated into, or accessible through the Services, including any third-party AI Technology.

"Training Data" means any and all information, data, materials, text, prompts, images, code, and other content that is used by or on behalf of Provider to train, validate, test, retrain, or improve any AI Technology incorporated into or used with, in connection with, or in support of, the Services, except for Customer Data.