AI Service Agreement
This AI Service Agreement (the “Agreement”) is entered into on 19 August 2024 by and between:
Exoland Labs Inc. (“Exoland”), a company incorporated under the laws of California, with its principal place of business at 5201 Great America Pkwy Suite 320, Santa Clara, CA 95054, and
TM FACTORY (“Client”), collectively referred to as the “Parties.”
1. Definitions
1.1 “Services” refers to the AI-generated content services provided by Exoland, including but not limited to: a) Video generation, including but not limited to 2D and 3D animations, visual effects, and motion graphics b) Image creation, including but not limited to digital illustrations, photo-realistic renderings, and graphic designs c) AI-powered content generation, including but not limited to text, scripts, storylines, and conceptual designs d) Any other AI-driven creative or analytical services offered by Exoland during the term of this Agreement The Services may be delivered through various mediums, including but not limited to web-based interfaces, APIs, or standalone software applications.
1.2 “Generated Content” means any output produced by the Services, including but not limited to: a) Videos, animations, and visual effects in various formats and resolutions b) Images, illustrations, and designs in various file formats c) Textual content, including scripts, articles, and creative writings d) Audio content, if applicable, including voice-overs or sound effects e) Any combination or derivative works of the above f) Metadata, project files, or other ancillary data produced in conjunction with the primary output
1.3 “Intellectual Property” includes, but is not limited to: a) Patents, patent applications, and patent rights b) Trademarks, service marks, trade names, brand names, logos, and trade dress, whether registered or unregistered, and all applications and registrations therefor c) Copyrights, copyright registrations and applications, and all other rights corresponding thereto throughout the world d) Trade secrets and other confidential information, including ideas, formulas, compositions, inventions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, and technical data e) Software and software rights, including all source code, object code, algorithms, and documentation f) Artificial intelligence models, algorithms, and training data g) Any other intellectual property rights recognized under any jurisdiction worldwide
1.4 “Exoland Technology” means all of Exoland’s proprietary technology, including but not limited to: a) The Services b) Exoland’s AI models, algorithms, and systems c) Software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information
1.5 “Client Data” means any data, information, or material provided or submitted by the Client to Exoland in the course of using the Services, including but not limited to prompts, instructions, source materials, and feedback.
1.6 “Confidential Information” has the meaning set forth in Section 8 of this Agreement.
1.7 “Effective Date” means the date on which this Agreement is signed by both parties, or if signed on different dates, the later of the two dates.
1.8 “User” means an individual who is authorized by the Client to use the Services, and who has been supplied user credentials by the Client (or by Exoland at the Client’s request).
1.9 “Third-Party Applications” means online, web-based applications or services and offline software products that are provided by third parties, interoperate with the Services, and are identified as such in Exoland’s documentation.
1.10 “Harmful Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Any capitalized terms used in this Agreement but not otherwise defined shall have the meanings ascribed to them in the context in which they are used. The definitions provided herein shall apply equally to both the singular and plural forms of the terms defined.
2. Services
2.1 Provision of Services: a) Exoland agrees to provide the Services to the Client subject to the terms and conditions of this Agreement. b) The specific scope, features, and functionality of the Services shall be as described in the applicable service description or statement of work, which may be updated from time to time at Exoland’s sole discretion. c) Exoland reserves the right to modify, enhance, or discontinue any aspect of the Services at any time without prior notice, provided that such changes do not materially diminish the overall functionality of the Services.
2.2 Access and Use of Services: a) Subject to the terms and conditions of this Agreement, Exoland grants the Client a non-exclusive, non-transferable, revocable right to access and use the Services solely for the Client’s internal business purposes during the term of this Agreement. b) The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service.
2.3 Evolving Technology: a) The Client acknowledges that the Services utilize AI technology that is continuously evolving and may be subject to future regulations, determinations, or technological advancements. b) The Client agrees that the functionality, performance, and capabilities of the Services may change over time as a result of such evolution. c) Exoland shall use commercially reasonable efforts to keep the Client informed of any material changes to the Services that may affect the Client’s use thereof.
2.4 Limitations and Disclaimers: a) Exoland does not guarantee the accuracy, completeness, or suitability of the Generated Content for any specific purpose. b) The Client acknowledges that the Generated Content may contain errors, inconsistencies, or unintended outputs, and agrees to review and validate all Generated Content before use. c) Exoland explicitly disclaims any responsibility for decisions, actions, or consequences resulting from the Client’s use of the Generated Content.
2.5 Client Responsibilities: a) The Client shall use the Services in compliance with all applicable laws, regulations, and Exoland’s acceptable use policies, as may be updated from time to time. b) The Client shall be solely responsible for the accuracy, quality, integrity, and legality of Client Data and the means by which the Client acquired such data. c) The Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify Exoland promptly of any such unauthorized access or use.
2.6 Service Levels: a) Exoland shall use commercially reasonable efforts to make the Services available in accordance with the service levels specified in Exoland’s then-current Service Level Agreement (SLA). b) The SLA may provide for service credits or other remedies in the event of service unavailability, which shall be the Client’s sole and exclusive remedy for any failure by Exoland to meet the specified service levels.
2.7 Support and Maintenance: a) Exoland shall provide technical support and maintenance services for the Services in accordance with its then-current support policies. b) Exoland reserves the right to charge additional fees for enhanced support services or custom development work requested by the Client.
2.8 Third-Party Services and Content: a) The Services may include integrations with third-party services or content. Exoland does not endorse and is not responsible for any such third-party services or content. b) The use of third-party services or content may be governed by separate terms and conditions. The Client is solely responsible for reviewing and complying with any such terms.
2.9 Feedback: a) If the Client provides any feedback, suggestions, or ideas regarding the Services (“Feedback”), Exoland shall have the right to use such Feedback without restriction or compensation to the Client. b) The Client hereby assigns to Exoland all right, title, and interest in and to such Feedback.
2.10 Reservation of Rights: Except for the limited rights expressly granted hereunder, Exoland reserves all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to the Client hereunder other than as expressly set forth herein.
3. Intellectual Property Rights
3.1 Ownership of AI Technology: All Intellectual Property rights in the AI models, algorithms, systems, and any improvements or modifications thereof used to provide the Services remain the sole and exclusive property of Exoland.
3.2 Shared Rights in Generated Content: While Exoland retains primary ownership and Intellectual Property rights of the Generated Content, TM FACTORY is granted certain usage rights as specified in this Agreement. The specific allocation of rights for each piece of Generated Content may be determined at Exoland’s discretion, taking into account the nature of the content and its intended use.
3.3 Expanded License: Subject to full payment of applicable fees, Exoland grants the Client a non-exclusive, transferable, and revocable license to use, modify, and distribute the Generated Content for commercial purposes, including but not limited to incorporation into their own products or services. However, Exoland retains the right to use any Generated Content for its own purposes, including but not limited to further AI training, marketing, or any other use deemed appropriate by Exoland.
3.4 Restrictions: The Client shall not: a) Claim sole ownership or authorship of the Generated Content or the AI technology used to create it. b) Use the Generated Content to train or develop competing AI systems without explicit written permission from Exoland. c) Reverse engineer, decompile, or attempt to extract the source code of Exoland’s AI systems.
3.5 Collaborative Use of Prompts: While Exoland retains ownership of the AI system and its capabilities, the Client is granted the right to use and modify prompts for their specific projects. Exoland reserves the right to use any prompts or variations thereof for system improvement and other purposes at its discretion. The Client grants Exoland a perpetual, irrevocable license to use, store, and process any information provided in the prompts.
3.6 Mutual Benefit from Feedback: Any feedback, suggestions, or ideas provided by the Client regarding the Services shall be considered shared intellectual property. Both parties may use such feedback for improvement of their respective services and products, with the understanding that neither party will claim exclusive ownership of ideas generated through this collaborative process.
3.7 Attribution: In cases where the Generated Content is substantially used or distributed by the Client, appropriate attribution to Exoland’s AI technology should be provided in a mutually agreed upon format, unless explicitly waived by Exoland.
3.8 Future Developments: Both parties acknowledge that the field of AI and related intellectual property laws are rapidly evolving. They agree to revisit and potentially renegotiate these terms as necessary to comply with future legal developments or significant changes in AI technology capabilities.
4. Authorization and Publication
4.1 Notification and Consultation: The Client agrees to notify Exoland before: a) Publicly attributing any Generated Content to Exoland or its AI technology in a prominent manner. b) Using the Generated Content in any significant commercial product or service that may impact Exoland’s reputation or market position. c) Substantially modifying or adapting the Generated Content in a way that significantly alters its original nature or purpose.
Exoland and the Client will work collaboratively to address any concerns that may arise from these notifications.
4.2 Review Process: For uses of Generated Content that fall under the categories mentioned in 4.1, Exoland reserves the right to request a review of the proposed use. This review process will be conducted in a timely manner and with the goal of finding mutually beneficial solutions.
4.3 Flexible Attribution: The Client is encouraged to provide appropriate attribution to Exoland’s AI technology when using the Generated Content, particularly in cases of significant or high-profile use. The form and prominence of this attribution can be agreed upon by both parties, taking into account the nature of the use and the context of the attribution.
4.4 Exceptions: Routine use of Generated Content in the Client’s regular business operations, including minor modifications or adaptations, does not require prior notification or review, unless it falls under the categories specified in 4.1.
4.5 Confidentiality: In cases where the Client’s use of the Generated Content involves sensitive or confidential information, both parties agree to maintain appropriate confidentiality measures and may enter into separate non-disclosure agreements as necessary.
4.6 Dispute Resolution: In the event of any disagreement regarding the use or attribution of Generated Content, both parties commit to resolving the issue through good-faith negotiation before resorting to formal dispute resolution mechanisms.
4.7 Evolving Practices: Both parties acknowledge that best practices in AI-generated content attribution and use may evolve over time. They agree to periodically review and update these terms to reflect industry standards and legal developments.
5. Usage and Limitations
5.1 Scope of Use: The Client is permitted to use the Services for all purposes outlined in this Agreement and for other reasonable business purposes consistent with the nature of the Services. For any use that significantly deviates from these purposes, the Client agrees to consult with Exoland to ensure such use aligns with the intended scope of the Services.
5.2 Collaborative Monitoring: Exoland and the Client agree to work collaboratively to ensure the Services are used in compliance with this Agreement. Exoland may periodically request information about the Client’s use of the Services, and the Client agrees to provide such information in a timely and transparent manner.
5.3 Service Modifications: a) Exoland will make reasonable efforts to provide advance notice of any significant changes or discontinuations to the Services. b) In the event of necessary immediate changes, Exoland will notify the Client as soon as practicable and work with the Client to minimize any negative impact. c) For any changes that may substantially affect the Client’s operations, both parties agree to discuss potential solutions or alternatives.
5.4 Prompt Content Responsibility: a) The Client is primarily responsible for the content of the prompts used with the Services and agrees to use reasonable efforts to ensure such content does not violate any applicable laws or third-party rights. b) If Exoland becomes aware of any potentially problematic prompt content, it will promptly notify the Client to address the issue collaboratively. c) Both parties agree to share best practices and guidelines for creating effective and compliant prompts.
5.5 Ethical Use: Both parties commit to using the Services in an ethical manner, respecting intellectual property rights, privacy, and other relevant ethical considerations in AI technology use.
5.6 Technical Support: Exoland will provide reasonable technical support to the Client to ensure effective use of the Services. The extent and nature of this support will be outlined in a separate service level agreement.
5.7 Feedback Loop: The Client is encouraged to provide feedback on the Services, including suggestions for improvements or new features. Exoland will consider this feedback in good faith when planning future developments of the Services.
5.8 Usage Limits: Any specific usage limits (e.g., number of queries, data volume) will be clearly communicated to the Client. If the Client anticipates exceeding these limits, both parties agree to discuss potential adjustments or upgrades to the service plan.
5.9 Evolving Technology: Both parties acknowledge that AI technology is rapidly evolving. They agree to periodically review and update these usage terms to reflect technological advancements and changing industry standards.
6. Disclaimers and Limitations of Liability
6.1 Service Quality: a) While Exoland strives to provide high-quality Services, the Services and Generated Content are provided “as is” and “as available”. b) Exoland does not warrant that the Services will be uninterrupted, error-free, or will meet all of the Client’s requirements. c) Exoland will make reasonable efforts to address and resolve any issues that may arise in the use of the Services.
6.2 Technology Limitations: The Client acknowledges that: a) AI technology is in continuous development and may produce unpredictable or inaccurate results. b) The Generated Content may contain errors, omissions, or inaccuracies. c) The Services are intended to augment, not replace, human judgment and expertise. d) Both parties agree to work collaboratively to identify and address any limitations or issues that arise from the use of the Services.
6.3 Mitigation of Risks: a) Exoland commits to providing the Client with up-to-date information about known limitations and best practices for using the Services. b) The Client agrees to implement reasonable measures to verify and validate the Generated Content before relying on it for critical decisions or applications. c) Both parties agree to promptly inform each other of any errors, inaccuracies, or issues discovered in the Generated Content or Services.
6.4 Limitation of Liability: a) To the fullest extent permitted by applicable law, Exoland’s total liability for any claims under this Agreement is limited to the amount paid by the Client for the Services in the 12 months preceding the claim. b) Neither party shall be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or related to this Agreement or the use of the Services. c) The limitations of liability in this section do not apply to: i) Breaches of confidentiality obligations ii) Violations of intellectual property rights iii) Gross negligence or willful misconduct
6.5 Indemnification: a) The Client agrees to indemnify and hold Exoland harmless from any claims, damages, or expenses arising from the Client’s use of the Services in violation of this Agreement or applicable laws. b) Exoland agrees to indemnify and hold the Client harmless from any claims alleging that the Services, when used as authorized under this Agreement, infringe on any third-party intellectual property rights.
6.6 Force Majeure: Neither party shall be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including but not limited to acts of nature, government actions, or network disruptions.
6.7 Feedback and Improvement: Both parties agree to engage in ongoing dialogue about the performance and limitations of the Services, with the goal of continuous improvement and risk mitigation.
6.8 Survival: The provisions of this section shall survive the termination or expiration of this Agreement.
7. Pricing and Payment
7.1 Project-Based Pricing: The pricing for each project will be determined based on various factors, including but not limited to: a) The specific AI model(s) used for generation b) Computational resources required c) Generation time (in seconds or minutes) d) Complexity of the scenes or content to be generated e) Any additional customization or special requirements f) The intended use and potential impact of the publication (e.g., commercial, film, spot) g) Potential for royalties or ongoing revenue
7.2 Pricing Determination: a) Exoland will use its AI-powered pricing model to calculate the base cost for each project based on the factors mentioned in 7.1 (a-e). b) Additional fees may be applied based on the intended use and potential impact of the publication (7.1.f). c) A detailed price quote will be provided to the Client before the commencement of each project. d) Both parties agree to discuss and negotiate in good faith if there are any concerns about the proposed pricing.
7.3 Payment Terms: a) All payments for services must be made in advance through the wallet credit system. b) Projects cannot be initiated until sufficient funds are available in the Client’s wallet. c) For ongoing or long-term projects, the Client must maintain a sufficient balance in their wallet to cover projected costs.
7.4 Wallet Credit System: a) The Client must purchase credits in advance, which will be used for all services provided by Exoland. b) The wallet must be recharged when the balance is insufficient to cover the cost of requested services. c) The value and usage of these credits will be determined on a project-by-project basis, considering the factors outlined in 7.1. d) Any unused credits will remain valid for 12 months from the date of purchase.
7.5 Additional Services: a) Support and consulting services will be deducted from the wallet credit system based on the scope and complexity of the service required. b) Exoland will provide a quote for these additional services before they are rendered, and the corresponding credits will be deducted upon the Client’s approval.
7.6 High-Volume Usage: a) If TM FACTORY’s annual revenue from products or services utilizing Exoland’s AI-generated content exceeds $999,999 USD, the Client must acquire an annual license for continued use of the system. b) The cost of this annual license is $60,000 USD, reflecting the computational costs and value provided by the AI system. c) This license fee is in addition to the regular usage fees charged through the wallet credit system.
7.7 Pricing Reviews: a) Exoland reserves the right to review and update its pricing model periodically to reflect changes in technology, market conditions, or operational costs. b) Any changes to the pricing model will be communicated to the Client with reasonable notice and will not affect already quoted or ongoing projects.
7.8 Transparency and Reporting: a) The Client agrees to provide Exoland with a breakdown of the budget and revenue for each project utilizing Exoland’s services. b) This breakdown should include, but is not limited to: i) Total project budget ii) Amount paid to Exoland for services iii) Revenue generated from the project c) This information will be used to ensure appropriate pricing and licensing structures are maintained. d) Exoland commits to maintaining the confidentiality of this financial information.
7.9 Taxes and Fees: The Client is responsible for any applicable taxes, transfer fees, or other charges related to the payment for Exoland’s services, unless otherwise agreed in writing.
7.10 Royalties and Revenue Sharing: a) For projects that have the potential to generate ongoing revenue (e.g., films, commercials with extended runs, products using the Generated Content), Exoland may propose a royalty-based compensation model. b) The royalty percentage will be negotiated on a project-by-project basis, taking into account factors such as: i) The extent of Exoland’s contribution to the final product ii) The potential market reach and revenue generation of the project iii) Industry standards for similar types of content or technology usage c) If a royalty-based model is agreed upon, the Client agrees to provide regular, accurate reports of revenue generated from the project, subject to audit by Exoland or its designated representatives. d) Royalty payments, if applicable, will be made quarterly unless otherwise agreed in writing.
7.11 Publication Impact Considerations: a) The pricing for projects intended for high-impact publications (e.g., major film productions, national advertising campaigns) may include an additional fee to reflect the increased value and exposure of Exoland’s services. b) This additional fee will be clearly communicated in the initial price quote and may be structured as: i) A one-time upfront payment ii) A percentage of the project’s production budget iii) A combination of upfront payment and reduced royalty rate c) The parties agree to negotiate these terms in good faith, considering both the value provided by Exoland and the potential return for the Client.
7.12 Confidentiality of Pricing: Both parties agree to maintain the confidentiality of the specific pricing terms, royalty rates, and revenue sharing agreements, except as required by law or agreed upon in writing.
7.13 Renegotiation Clause: In the event that a project’s scope, intended use, or potential impact significantly changes after the initial agreement, both parties agree to renegotiate the pricing and compensation terms in good faith.
8. Confidentiality
8. Confidentiality
8.1 Definition of Confidential Information:
“Confidential Information” means any information disclosed by Exoland to the Client, either directly or indirectly, in writing, orally or by inspection of tangible objects, including but not limited to:
a) The AI models, algorithms, and systems used to provide the Services
b) Technical data, trade secrets, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information
c) The terms and pricing under this Agreement
d) Any information designated as confidential at the time of disclosure, or which under the circumstances of disclosure should reasonably be considered confidential
8.2 Exclusions:
Confidential Information does not include any information that:
a) Is or becomes generally known to the public without breach of any obligation owed to Exoland
b) Was known to the Client prior to its disclosure by Exoland without breach of any obligation owed to Exoland
c) Is received from a third party without breach of any obligation owed to Exoland
d) Was independently developed by the Client without use of or reference to the Confidential Information
8.3 Protection of Confidential Information:
The Client agrees to:
a) Hold Exoland’s Confidential Information in strict confidence and not disclose it to any third party
b) Use Exoland’s Confidential Information solely for the purpose of performing its obligations or exercising its rights under this Agreement
c) Take all reasonable precautions to prevent unauthorized disclosure or use of Exoland’s Confidential Information, including, at a minimum, those precautions taken by the Client to protect its own confidential information
d) Not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects which embody Exoland’s Confidential Information
e) Immediately notify Exoland upon discovery of any unauthorized use or disclosure of Confidential Information and assist Exoland in every reasonable way to regain possession of the Confidential Information and prevent its further unauthorized use
8.4 Compelled Disclosure:
If the Client is compelled by law to disclose Confidential Information, it shall give Exoland prompt notice of such requirement prior to disclosure so that Exoland may seek a protective order or other appropriate remedy.
8.5 Return or Destruction of Confidential Information:
Upon termination of this Agreement or upon Exoland’s request at any time, the Client shall promptly return to Exoland or destroy all copies of Confidential Information in its possession or control.
8.6 Injunctive Relief:
The Client acknowledges that any breach of this confidentiality obligation may cause Exoland irreparable harm for which monetary damages would be inadequate. Accordingly, Exoland will be entitled to seek injunctive relief for any breach of this section without the necessity of proving actual damages or posting a bond.
8.7 Duration of Confidentiality Obligation:
The confidentiality obligations set forth in this section shall survive the termination or expiration of this Agreement and continue for a period of five (5) years thereafter, or, in the case of trade secrets, for as long as the information remains a trade secret under applicable law.
8.8 Limited Disclosure:
The Client may disclose Confidential Information only to those of its employees or contractors who need to know such information for the purposes of this Agreement and who have signed confidentiality agreements with the Client containing protections no less stringent than those herein.
8.9 No Rights Granted:
Nothing in this Agreement shall be construed as granting any rights to the Client under any patent, copyright, or other intellectual property right of Exoland, nor shall this Agreement grant the Client any rights in or to Exoland’s Confidential Information, except the limited right to use such Confidential Information solely for the purposes of this Agreement.
9. Term and Termination
9. Term and Termination
9.1 Term:
This Agreement shall commence on the Effective Date and shall continue in effect until terminated in accordance with the provisions of this Agreement.
9.2 Termination or Suspension by Exoland:
a) Exoland reserves the right to terminate this Agreement or suspend Services at any time, for any reason or no reason, without prior notice and without liability to the Client.
b) Without limiting the foregoing, Exoland may immediately terminate this Agreement or suspend Services if, in Exoland’s sole discretion:
i) The Client is using the Services in a manner that Exoland deems inappropriate or inconsistent with the intended use.
ii) The Client’s use of the Services poses a reputational risk to Exoland.
iii) The Client breaches any term of this Agreement.
iv) The Client fails to make timely payments.
v) Continued provision of Services to the Client may be in violation of applicable laws or regulations.
9.3 Effect of Termination:
Upon termination of this Agreement for any reason:
a) The Client shall immediately cease all use of the Services and Generated Content.
b) The Client shall delete or destroy all copies of Generated Content in its possession or control, unless explicitly permitted in writing by Exoland to retain specific content.
c) Any outstanding payments owed by the Client shall become immediately due and payable.
d) Any unused credits in the Client’s wallet shall be forfeited without refund, unless otherwise agreed in writing by Exoland.
9.4 Survival:
The following sections shall survive the termination or expiration of this Agreement: Intellectual Property Rights, Confidentiality, Disclaimers and Limitations of Liability, and any other provision that, by its nature, should reasonably survive termination.
9.5 No Compensation:
The Client acknowledges and agrees that Exoland shall not be liable for any damages or compensation arising from the termination or suspension of Services under this Agreement.
9.6 Reactivation:
In the event of suspension of Services, Exoland may, at its sole discretion, reactivate the Services upon satisfaction of any requirements it deems necessary, including but not limited to payment of a reactivation fee or provision of assurances regarding future use of the Services.
9.7 Termination Assistance:
Exoland is under no obligation to provide any transition or termination assistance. Any such assistance shall be at Exoland’s sole discretion and may be subject to additional fees.
9.8 Reservation of Rights:
Exoland’s termination or suspension of Services under this Agreement is without prejudice to any other rights or remedies Exoland may have, and does not relieve the Client of any obligation or liability accrued prior to such termination or suspension.
10. Governing Law and Dispute Resolution
10.1 Governing Law: a) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). b) The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. c) All intellectual property rights and disputes related thereto shall be governed by and interpreted in accordance with the intellectual property laws of the State of California and applicable United States federal law, including but not limited to the Copyright Act of 1976, the Patent Act of 1952 (as amended), the Lanham Act, and the Defend Trade Secrets Act of 2016.
10.2 Dispute Resolution: a) Any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach, or termination, shall be resolved through binding arbitration. b) The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. c) The arbitration shall be conducted in Santa Clara County, California, unless the parties mutually agree on another location. d) The arbitration shall be conducted in the English language by a single arbitrator appointed in accordance with the JAMS Rules. e) The arbitrator shall be a retired judge or an attorney with at least fifteen (15) years of experience in intellectual property and technology transactions, licensed to practice law in California.
10.3 Arbitration Proceedings: a) The arbitrator shall have the power to grant any remedy or relief that they deem just and equitable, including but not limited to injunctive relief, whether interim or final, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. b) The arbitrator shall not have the power to award punitive or exemplary damages, and the parties hereby waive any right to seek or recover such damages with respect to any dispute resolved by arbitration. c) The arbitrator shall apply the substantive law of California, exclusive of its conflict or choice of law rules. d) The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors, and senior management.
10.4 Costs and Fees: a) Each party shall bear its own costs, expenses, and attorney’s fees associated with the arbitration; provided, however, that the prevailing party, as determined by the arbitrator, shall be entitled to recover its reasonable attorney’s fees and costs. b) The fees and costs of the arbitration and the arbitrator shall be borne equally by the parties unless otherwise awarded by the arbitrator.
10.5 Judgment on the Award: The award rendered by the arbitrator shall be final and binding upon the parties and may be entered and enforced in any court of competent jurisdiction.
10.6 Injunctive Relief: Notwithstanding the foregoing, either party may seek injunctive relief in any state or federal court of competent jurisdiction in Santa Clara County, California to prevent imminent harm or preserve the status quo pending resolution of the dispute through arbitration.
10.7 Class Action Waiver: The parties hereby waive any right to pursue any dispute or claim arising under this Agreement as a class action, consolidated, or representative action, and the arbitrator shall have no authority to proceed with arbitration on a class or collective basis.
10.8 Time Limitation: Any arbitration proceeding must be initiated within one (1) year after the dispute arises or it will be deemed time-barred.
10.9 Severability: If any provision of this dispute resolution section is found to be unenforceable, such provision shall be severed, and the remainder of this section shall remain in full force and effect.
10.10 Intellectual Property Rights: The parties acknowledge and agree that any dispute relating to intellectual property rights, including but not limited to copyrights, patents, trademarks, and trade secrets, shall be subject to the exclusive jurisdiction of the federal courts located in the Northern District of California, notwithstanding the arbitration provisions set forth above.
By agreeing to this provision, the parties acknowledge that they are waiving their right to a jury trial and to participate in a class action lawsuit.
11. Miscellaneous
11.1 Entire Agreement: This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, negotiations, representations, understandings, and communications between the parties, whether oral or written. The parties acknowledge that they have not relied on any representation, warranty, or undertaking in relation to the subject matter of this Agreement that is not expressly set out in this Agreement.
11.2 Amendments and Waivers: a) This Agreement may only be amended or modified by a written instrument signed by authorized representatives of both parties. b) No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the waiver is to be effective. c) No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. d) Exoland reserves the right to update or modify the terms of service, pricing, or policies related to the Services at any time. Such changes will be effective upon posting to Exoland’s website or upon notification to the Client.
11.3 Assignment and Subcontracting: a) The Client may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Exoland. Any attempted assignment, transfer, delegation, or subcontracting in violation of this provision shall be null and void. b) Exoland may assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without restriction or the need for the Client’s consent. c) This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
11.4 Severability: If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the provision shall be severed from this Agreement. In either case, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
11.5 Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties.
11.6 No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.7 Governing Law and Jurisdiction: a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). b) Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the state or federal courts located in Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. c) The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. d) In the event of any legal action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
11.8 Force Majeure: Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control.
11.9 Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier; (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
11.10 Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.
11.11 Survival: Any provision of this Agreement that, by its nature, should survive termination or expiration of this Agreement, including but not limited to provisions relating to intellectual property, confidentiality, limitation of liability, and indemnification, shall survive any termination or expiration of this Agreement.
By using the Services, the Client acknowledges that they have read, understood, and agreed to be bound by the terms and conditions of this Agreement. The Client further represents and warrants that it has the legal power and authority to enter into this Agreement and create a binding obligation on behalf of the entity it represents.
Exoland Labs Inc.