OctoML Compute Service

These Terms of Use, including any applicable Order Form (“Order Form”) which by this reference is incorporated herein, set forth the terms under which You may use and access OctoML’s proprietary SaaS Compute Service (collectively the “Agreement”) and is a binding agreement between OctoML, Inc. with a principal place of business at 1000 N Northlake Way Seattle, WA 98103 USA (“OctoML”) and the legal entity using the services (“you,” “Customer’s,” and “Customer” refers to that legal entity).

TERMS AND CONDITIONS

1. OctoML Compute Service. The OctoML Compute Service (the “Compute Service”) includes access and use of the software-as-a-service solution for optimizing, packaging, and serving machine learning models and weights and hosting of Customer Data to be used and processed in the hosted optimized Customer Models (as defined herein) during the term of access to the Customer’s User Account (the “Term”). The Compute Service is designed to help improve and optimize Customer’s hosted machine learning models (each, a “Customer Model”), such as but not necessarily limited to, increasing efficiencies with respect to each Customer Model’s latency, processing time, and/or power savings characteristics which may use Customer Data. “Customer Data” means any and all data or information submitted, posted or created by or on behalf of Customer to OctoML in the course of using the Compute Service, including but not limited to any Customer provided: weights, model prompts (such as Customer instructing the Compute Service to generate a specific output), model outputs, code and logic. The Compute Service that OctoML provides to Customer pursuant to the Agreement may comprise, among other things, software that enables Customer to access and use the Compute Service (collectively, the “Software”); one or more software development kits that enables Customer to create executable object code that interacts with the Compute Service (each, an “SDK”) (Software and SDK collectively referred to as “Client Software”); other information, data, and materials provided to Customer as part of the Compute Service, including Customer Models on which the Compute Service are performed (each, an “Optimized Model”); and any related services that OctoML agrees to provide to Customer from time to time.

2. Access to the Compute Service.

   1. Customer and its employees and contractors acting on its behalf may access and use the Compute Service during the Term in accordance with the terms and conditions of this Agreement. Customer remains responsible for all of its users’ compliance with the terms and conditions of this Agreement. Customer will ensure that all such users keep their user IDs and passwords for the Compute Service strictly confidential and will remain responsible for any and all actions taken using Customer’s accounts. If any user of the Compute Service no longer works for Customer, Customer will ensure that such person has no further access to the Compute Service. To the extent use of the Compute Service requires Customer to install Client Software, subject to all of the terms and conditions of this Agreement, OctoML grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Compute Service and otherwise in accordance with this Agreement.

   2. Customer’s User Account and/or the Compute Service may contain links to third-party sites for Customer’s convenience. OctoML is not responsible for the content of such third-party sites and does not make any representations or warranties regarding such sites or their content. Use of or reliance on such third-party sites is at Customer’s sole risk.

   3. Sample Data. OctoML may make available sample data (including from third-party sources) solely for Customer’s non-production use during the Term (“Sample Data”). Customer acknowledges that Sample Data is example data only, which may not be complete, current, or accurate. Customer will not (and will not permit any third party to) copy or export any Sample Data and agrees that OctoML may delete or require Customer to cease using Sample Data at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SAMPLE DATA IS PROVIDED “AS IS” AND OCTOML WILL NOT PROVIDE ANY WARRANTY, INDEMNITY OR OTHER OBLIGATIONS WITH RESPECT TO SAMPLE DATA.

3. Purchases and Payments. Customer may be required to purchase or pay a fee to access Customer’s User Account and all or some of the features and functions of the Compute Service once any stated usage limits are reached per the published documentation that OctoML makes generally available to all of its customers (“Documentation”). Customer agrees to provide OctoML with current, complete, and accurate purchase, payment, billing, and account information. Customer further agrees to promptly update Customer’s User Account information, including any billing and account information, which may include Customer’s email address information related to Customer’s authorized payment method, or methods, so that OctoML can complete all payment and billing transactions and contact Customer, as needed. If Customer is charged for access to Customer’s User Account, OctoML will bill Customer using the billing and account information that Customer provides to OctoML or, if applicable, through an online billing account for purchases made using Customer’s User Account. Sales taxes, value added taxes, or similar taxes and surcharges that OctoML is required by applicable law to collect and remit will be added to the price of purchases as deemed required by OctoML. Customer, on the other hand, is solely responsible for remitting any self-assessed sales tax, value added taxes, or similar taxes or surcharges. All payments will be stated by OctoML and paid by Customer in US Dollars. OctoML may change its prices or unpaid/paid usage limits at any time. Customer agrees to pay all charges or fees at the prices then in effect for Customer’s purchases, and Customer authorizes OctoML to charge Customer’s authorized payment method for any such amounts upon making purchases using Customer’s User Account. If one or more of Customer’s purchases are subject to recurring charges, then Customer consents to OctoML billing Customer or otherwise charging Customer’s authorized payment method on a recurring basis without requiring Customer’s prior approval for each recurring charge, until Customer notifies OctoML of Customer’s cancellation of such recurring charges. OctoML reserves the right to correct any errors or mistakes in pricing, even if OctoML has already requested or received payment. OctoML also reserves the right to refuse any purchase made using Customer’s User Account.

4. Prohibited Activities. Customer will not access or use Customer’s User Account or the Compute Service for any purpose other than that for which OctoML intends them to be used and for which they are designed and developed by OctoML. Customer may expressly not use or make the OctoML Optimized Models available outside of the OctoML platform. In addition to the other limitations, restrictions, representations, and warranties set forth in this paragraph and elsewhere in this Agreement, Customer agrees that Customer will not: (1) reproduce, modify, make derivative works of, decipher, decompile, disassemble, or reverse engineer the Compute Service; (2) modify or remove any copyright notices or other proprietary rights notices of OctoML or its licensors in or accompanying Customer’s User Account or the Compute Service; (3) make Customer’s User Account or the Compute Service available in any manner to any third party for use in the third party’s business operations, other than an entity that Customer has expressly represented to OctoML that Customer represents as an agent or other representative (e.g., as an officer or employee); (4) access or use (or permit third parties to access or use) Customer’s User Account or the Compute Service, including the Software and SDKs, in order to build or support any products or services competitive with the Compute Service or OctoML’s other products and services; (5) inaccurately or falsely represent Customer’s current location, Customer’s demographic location, Customer’s address, Customer’s employer, or otherwise inaccurately or falsely represent Customer to OctoML; (6) circumvent, disable, or otherwise interfere, directly or indirectly, with any security-related features of Customer’s User Account or the Compute Service, including features that prevent or restrict the use, downloading, redistribution, and/or reproduction of information, data, and other materials provided to Customer and others via the Optimization Service; (7) engage in unauthorized framing of or linking to Customer’s User Account or the Compute Service; (8) interfere with, disrupt, or create an undue burden on the Compute Service, including the Software, or any of the hardware, networks, or other systems that OctoML own or control; (9) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other harmful code or materials that interfere with the uninterrupted use and enjoyment of the Compute Service by OctoML or others or modifies, impairs, disrupts, alters, or interferes with the access to or use, features, functions, operation, or maintenance of the Compute Service; (10) use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses Customer’s User Account or the Compute Service, or using or launching any unauthorized script or other software; (11) use the Compute Service to mine for cryptocurrency; (12) use the Compute Service to mislead others about Customer’s identity or the origin of a message or other communication, or impersonate or otherwise misrepresent Customer’s affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (13) use the Compute Service (i) to promote, solicit or generate inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, or otherwise objectionable or unlawful content or activity; or (ii) in such a way that is harmful to minors. Customer hereby acknowledges and agrees that, if OctoML determines that Customer’s access to or use of Customer’s User Account or the Compute Service constitutes an activity prohibited by this Agreement or otherwise exceeds reasonable limits, including those described in this paragraph, OctoML reserves the right to cancel, suspend, or place limits on Customer’s access to and use of Customer’s User Account and the Compute Service, including, for example, imposing velocity limitations on Customer’s usage, if and to the extent that OctoML deem such limitations reasonable and necessary.

5. Customer Models and Customer Data. Subject to the terms of this Agreement, Customer hereby grants to OctoML a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, improve and create derivative works of, and display and to otherwise perform the Compute Service on the Customer Models and host and use the Customer Data solely to the extent necessary to provide the Compute Service to Customer and in each case, as directed by Customer via Customer User Account. OctoML hereby agrees that, as between OctoML and Customer, Customer Data, Customer Models and any code modifications, improvements, or reorganizations implemented as elements of Customer Optimized Models as a result of OctoML’s performance of the Optimization Service are owned by Customer, including any and all intellectual property in or related thereto and any authorized or unauthorized enhancements, updates, upgrades, improvements, translations, adaptations, or other modifications to or reproductions or derivative works thereof, subject to OctoML’s (or, if applicable, OctoML’s licensors’) ownership of the Compute Service, as described in greater detail in the paragraph 9 below.

6. Customer Obligations. Customer shall ensure that Customer’s use of the Compute Service, all Customer Data and Customer Models are at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, data transfer, international communications and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data and Customer Models. Customer represents and warrants to OctoML that Customer has sufficient rights in the Customer Data and Customer Models to grant the rights granted to OctoML in Section 5 (Customer Models and Customer Data) above and the Customer Data and Customer Models does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. In addition, Customer specifically agrees not to submit to the Compute Service any Customer Data consisting of: (1) payment card industry (“PCI”) data; (2) personally identifiable information (“PII”) data, of any third party (including any Customer); or (3) personal health information (“PHI”), patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“HIPAA Data”). Customer acknowledges that OctoML is not a Business Associate or subcontractor (as those terms are defined in HIPAA). “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. OctoML shall have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules, or regulations. Customer shall not (a) hold itself out as a reseller of the Compute Service, (b) make any legal representations, guarantees or warranties of any type on behalf of OctoML or with respect to the specifications, features, capabilities or otherwise concerning the Compute Service, or describe the Compute Service in a manner inconsistent with the product descriptions or promotional materials made publicly available by OctoML, or (c) engage in any deceptive, misleading illegal or unethical practices under this Agreement. Customer shall indemnify, defend and hold harmless OctoML from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Models, Customer Data or any breach or alleged breach by Customer of this Section 6.

7. Support. OctoML will use reasonable efforts to answer Customer’s questions regarding use of the Compute Service, but is not obligated to provide any other support for the Compute Service during the Term except as stated in the OctoML Compute Service Documentation.

8. Confidential Information. The parties may disclose to each other information identified at the time of disclosure as confidential or which should be reasonably known by the receiving party to be confidential (“Confidential Information”), which may include information concerning their respective businesses and technology. The OctoML Technology (as defined below) is Confidential Information of OctoML and any Customer Data and Customer Models are the Confidential Information of Customer, in each case without any marking or further designation. Except as authorized herein, the receiving party will (i) hold in confidence and not disclose any Confidential Information to third parties and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a need to know (including, for OctoML, the subcontractors referenced in Section 15), provided that such representatives are bound to confidentiality obligations no less protective of the disclosing party than this Section and that the receiving party remains responsible for compliance by any such representative with the terms of this Section. These restrictions on disclosure will not apply to any information which: (a) is or becomes generally known or publicly available through no act or omission of the receiving party; (b) is known by the receiving party without confidentiality restriction at the time of receiving such information, as shown by written records; or (c) is furnished to the receiving party by a third party without confidentiality restriction. The receiving party may make disclosures to the extent required by law or court order, provided the receiving party notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

9. Intellectual Property Rights.

   1. Customer agrees that OctoML or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) to the Compute Service, including the Software; SDKs; and all of the information, data, materials, features, functions, and other content provided by OctoML via Customer’s User Account and the Optimization Service, including, but not limited to, any and all techniques and learnings relating to the improvements or modifications that OctoML implements or otherwise develops in connection with performance of the Compute Service; any statistical or logging data (including order of operation, timing, and performance data) obtained during performance of the Compute Service; any source code, object code, sample code, Documentation, libraries, development tools, displays, designs, images, graphics, text, data, databases, algorithms, video, and audio related to the Compute Service; and any and all trademarks, service marks, and logos identifying or accompanying the Compute Service, are owned by OctoML or, if applicable, our licensors, including any and all intellectual property in or related thereto and any authorized or unauthorized enhancements, updates, upgrades, improvements, translations, adaptations, or other modifications to or reproductions or derivative works thereof (collectively “OctoML Technology”), subject to Customer’s ownership of the Customer Data and Customer Models and the code modifications, improvements, and reorganizations implemented as elements of Customer’s Compute Models, as described in greater detail in the paragraph 5 above. The Compute Service, including each of the proprietary elements described in the preceding sentence, is the sole property of OctoML and/or its licensors and is protected by copyright, trademark, patent, trade secret, and other intellectual property laws and unfair competition laws of the United States, foreign jurisdictions, and international conventions. OctoML, on behalf of itself and its licensors, reserves all rights in this regard. Except for the express limited rights set forth in this Agreement, no right, title or interest in any OctoML Technology is granted to Customer. Further, Customer acknowledges that the Compute Service is offered as an on-line SaaS, and that Customer has no right to obtain a copy of the underlying computer code for the Compute Service, except for the Client Software in object code format. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to OctoML’s products and services to OctoML (“Feedback”). OctoML may freely use or exploit Feedback in connection with any of its products or services. Notwithstanding anything to the contrary herein, Customer agrees that OctoML may collect Service Data, and OctoML may use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. “Service Data,” as used in this Section 9, means query logs and other information about Customer’s use of the Compute Service. Service Data does not include Customer Models. This Section 9 does not give OctoML the right to identify Customer as the source of any Service Data without written permission from Customer.

   2. Customer hereby acknowledges and agrees that certain elements of the Compute Service and certain results from performance of the Compute Service comprise Free and Open Source Materials. “Free and Open Source Materials” means software source code, documentation, and related source materials that are licensed to the public on a free or open-source basis by OctoML or one or more third-party contributors to such code, documentation, and materials, including modifications and other contributions thereto. Notwithstanding anything to the contrary in this Agreement, Customer’s Optimized Models and the code modifications, improvements, and reorganizations implemented as elements of Customer’s Optimized Models shall not be deemed to include any Free and Open Source Materials. For the avoidance of doubt, OctoML will make modifications and other contributions to such Free and Open Source Materials that are conceived, designed, developed, or otherwise created by OctoML available to the public on a free and open-source basis pursuant to one or more open-source license agreements. Customer’s and other licensees’ rights, duties, and responsibilities with respect to all Free and Open Source Materials, including any rights to use, download, copy, modify, or redistribute Free and Open Source Materials, will be governed solely by the terms and conditions set forth in the applicable open source license agreement, or agreements, pursuant to which such Free and Open Source Materials are licensed to the public and not by any rights granted by OctoML to Customer pursuant to this Agreement.

10. Term and Termination.

    1. The Term of this Agreement commences upon Customer’s acceptance of this Agreement, as evidenced by Customer’s registering a User Account or otherwise purchasing, accessing, or using the Compute Service. Customer may terminate this Agreement at any time by canceling Customer’s User Account. OctoML may terminate this Agreement by canceling or suspending Customer’s User Account in the event that Customer breaches any of the terms, conditions, limitations, restrictions, representations, or warranties set forth in this Agreement. OctoML may also terminate this Agreement at any time for any reason or no reason by refunding on a pro-rata basis any pre-paid fees paid by Customer for the Compute Service corresponding to the period of discontinuation. If OctoML cancels or suspends Customer’s User Account for any reason, Customer is prohibited from registering and creating a new User Account under Customer’s name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of an entity. In addition to canceling or suspending Customer’s User Account and/or terminating this Agreement, OctoML reserves the right to take appropriate legal action, including, without limitation, pursuing civil and criminal remedies and seeking injunctive relief.

    2. OctoML reserves the right, at any time, without notice to Customer, to deactivate any Customer User Account that has remained unused for one hundred eighty (180) days.

    3. At the end of the Term, (a) Customer’s access to the Compute Service will expire; (b) each party will return or destroy the other party’s Confidential Information; and (c) Customer will delete any Client Software, Documentation, and any Compute Service passwords or access codes. Customer acknowledges that following termination it shall have no further access to any Customer Data and/or Customer Models input into the Compute Service. Within thirty (30) days following the end of the Term, OctoML will delete the Customer Data and Customer Models and Customer’s User Account. Either party may terminate this Agreement at any time for any or no reason upon written notice to the other party. Nothing herein obligates either party to enter into any further agreement with the other party. This Section 10 and Sections 6 (Customer Obligations), 8 (Confidential Information), 9 (Intellectual Property Rights), 11 (No Warranty), 12 (Limitation of Liability), 14 (No Publicity); 15 (General); 16 (Governing Law and Dispute Resolution); 17 (Privacy) and 18 (Notices) will survive any expiration or termination of this Agreement.

11. No Warranty. THE COMPUTE SERVICE IS PROVIDED “AS IS”. NEITHER OCTOML NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. OCTOML DOES NOT WARRANT THAT CUSTOMER’S USE OF THE OPTIMIZATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES OCTOML WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA OR CUSTOMER MODELS FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA OR CUSTOMER MODELS WITHOUT LOSS. OCTOML SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOML, INCLUDING ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

12. Limitation of Liability. EXCEPT FOR EXCLUDED CLAIMS, (A) IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO OCTOML UNDER THIS AGREEMENT OR (II) ONE THOUSAND DOLLARS (USD $1,000). “Excluded Claim” means any claim arising (a) from Customer’s breach of Section 2 (Access to the Compute Service) or Section 4 (Prohibited Activities); (b) under Section 6 (Customer Obligations); (c) from a party’s breach of its obligations in Section 8 (Confidential Information) (but excluding claims arising from loss or unauthorized disclosure of Customer Data and/or Customer Models); or (d) any fees due or payable by Customer.

13. Export Control. In its use of the Compute Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, each party represents, warrants and covenants that it will not export, re-export, transfer, or release any products, software, technical information or Customer Models developed or shared under this Agreement without first complying with all requirements of applicable export controls laws and regulations. Without limiting the foregoing, in the absence of authorization by U.S. or local law and regulations, as required, the Compute Service, Client Software, technical information or Customer Models, developed or shared under this Agreement may not be used by, exported or reexported to (i) any U.S. sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) any person, entity, organization or other party identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Debarred Parties List, as published and revised from time to time; or (iii) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities.

14. No Publicity. Customer acknowledges that it does not have any right under this Agreement to use any trademarks or logos of OctoML, unless agreed to in writing by OctoML.

15. General. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. OctoML may use the services of subcontractors in order to provide the Compute Service under this Agreement, provided that OctoML remains responsible for compliance of any such subcontractor with the terms of this Agreement. All amendments must be in writing and signed by both parties. Waivers must be in writing and no waivers will be implied. This Agreement may not be assigned by Customer, and any purported assignment or amendment in violation of the foregoing will be void. OctoML may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of OctoML’s assets or voting securities. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof will be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Elements of the Optimization Service are commercial computer software. If the user or licensee of the Compute Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Compute Service, or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Compute Service was developed fully at private expense. All other use is prohibited.

16. Governing Law and Dispute Resolution.

    1. This Agreement will be governed by and construed under the laws of the State of Washington. Any suit or proceeding arising out of or relating to this Agreement that is not subject to arbitration will be commenced exclusively in the state or federal courts in King County, Washington, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

    2. Dispute Resolution; Mandatory Binding Arbitration

       1. Please read this section of this Agreement carefully, because it requires Customer to waive the right to a jury trial; requires Customer to arbitrate certain disputes, controversies, and claims with OctoML; and limits the manner in which Customer can seek relief from OctoML. As set forth in this section, no class or representative actions or arbitrations are allowed.

       2. To expedite resolution and control the cost of any dispute, controversy, or claim related to this Agreement, including any supplemental terms incorporated by reference into this Agreement (each a “Dispute” and collectively, the “Disputes”) brought by either Customer or OctoML (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

       3. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. Customer understands that without this provision, Customer would have the right to sue in court and, in certain cases, have a jury trial. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules”), both of which are available at the AAA website www.adr.org. Customer’s arbitration fees and Customer’s share of arbitrator compensation shall be governed by the Rules and, where appropriate, limited by the Rules. If such costs are determined by the arbitrator to be excessive, OctoML will pay all arbitration fees and expenses. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

       4. Modification to AAA Rules - Arbitration Hearing/Location. Customer agrees that any required arbitration hearing will be conducted in the English language by one (1) mutually agreed upon arbitrator, at OctoML’s sole and complete discretion, (a) in King County, Washington or in any other location to which Customer and OctoML both agree; (b) via phone or video conference; or (c) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.

       5. In no event shall any Dispute be commenced more than one year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

       6. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other proceeding; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

       7. The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (3) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

       8. The Parties hereby agree that this Agreement affects interstate commerce and that the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual.

       9. The arbitrator and the Parties will maintain the confidentiality of any proceedings, including, but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.

17. Privacy. OctoML cares about data privacy and security. OctoML’s privacy policy is available at https://octoml.ai/legals/privacy-policy/ (“Privacy Policy”). By accessing or using the Compute Service, Customer affirms that Customer has read the Privacy Policy and understands its terms and conditions. Customer agrees that OctoML can use the information OctoML collects pursuant to and in accordance with the Privacy Policy, as it may be updated from time to time. Customer’s User Account; the Compute Service; the Software; SDKs; and the information, data, and materials provided to Customer and others as part of the Compute Service are designed, developed, hosted, operated, supported, maintained, and otherwise offered by OctoML in the United States. If Customer accesses Customer’s User Account from the European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, processing, or disclosure that differ from applicable laws in the United States, then through Customer’s continued access to and use of Customer’s User Account, Customer is transferring Customer’s information to the United States, and Customer expressly consents to having Customer’s information transferred to and stored and/or processed in the United States.

18. Notices.

    1. By using the Service, Customer consents to receiving electronic communications from OctoML. These electronic communications may include notices about applicable fees and charges related to the Service and transactional or other information concerning or related to the Service. These electronic communications are part of Customer’s relationship with OctoML and Customer receives them as part of Customer’s use of the Service. Customer agrees that any notices, agreements, disclosures or other communications that we send Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.

    2. Notices from Customer to OctoML or OctoML to Customer shall be in writing and may be sent via email or via Customer’s User Account. In any event, Customer can notify OctoML or send questions, complaints, or claims related to the Compute Service to OctoML by contacting OctoML using the contact information set forth below. Notices from OctoML to Customer will be sent to the email address or mailing address provided by Customer as part of Customer’s User Account.

    3. Contact OctoML. In order to resolve a complaint regarding Customer’s User Account or the Compute Service or to receive further information from OctoML about the Compute Service, please contact OctoML at:

       OctoML, Inc.

       1000 N Northlake Way

       Seattle, WA 98103 USA

       contact@octoml.ai