Software as a Service Subscription Agreement
Last Updated: Jan 3, 2023
This Software as a Service Subscription Agreement (“Agreement”) is incorporated by reference into each Order and Statement of Work that you may enter into with Layer AI, Inc. (“Layer”, “we”, “us”). “You” means your employer or the entity you represent and its Affiliates and Users, in accepting the terms of this Agreement or, if that does not apply, you individually. Each of you and us is a “Party” and collectively, are the “Parties”. Capitalised terms not defined herein shall have the meaning set forth in the applicable Order.
Any User of the Services must be eighteen (18) years old or older to use the Services.
If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to the terms of this Agreement; (ii) you have read and understand the terms of this Agreement; and (iii) you agree to the terms of this Agreement on behalf of the party that you represent.
If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I Agree/I Accept/Sign Up” (or similar button or checkbox) that is presented to you. If you do not have such authority, or if you do not agree with the terms of this Agreement, you may not use the Services.
Your right to access and use the Services, whether or not an Order has been signed between you and us, is expressly conditioned on your acceptance of this Agreement. By accessing or using the Services, you agree to be bound and abide by the terms of this Agreement.
- 1. Definitions Used in this Agreement.
- “Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
- “AUP” means Layer’s standard Acceptable Use Policy, currently available at layer.ai/acceptable-use or made available to You otherwise by Layer.
- “Content Sharing” means posting, publishing, or otherwise sharing Your Content or Generated Content with others
- “Documentation” means any manuals, instructions or other documents or materials that we provide or make available to you in any form or medium and which describe the functionality, components, features or requirements of the Services including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.
- “Feedback” means any suggestion, idea, improvement, enhancement request, recommendation, correction or other feedback provided by you or any User relating to the operation of the Services.
- “Generated Content” means the content that You or any of your Users produce, by accessing or using the Services that Layer provides based on Your Content.
- “Intellectual Property Rights” means rights in patents, utility models, copyright and related rights, trademarks, trade names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, source code, object code, know-how and any other intellectual property rights worldwide and the right to apply for or renew the registration of such rights.
- “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
- “Order” means any order form, or other ordering document, including any Internet-based or email-based ordering mechanism or registration process (e.g., your account page in the Services) specifying the level of the Services to be provided hereunder and associated fees therefor that is entered into between you and us or any of our respective Affiliates, including any addenda and supplements thereto. By entering into an Order hereunder, any Affiliate of yours agrees to be bound by the terms of this Agreement as if it were you.
- “Pricing Page” means the publicly available web page(s) where Layer publishes its list prices for Services, currently available at https://layer.ai/pricing/.
- “Privacy Laws” means all laws and regulations regarding data privacy and transmission of personal data that apply to our provision of the Services to you (e.g., storing and processing Your Content).
- “Services” means (i) the Site and (ii) our personalised generative artificial intelligence tools services and related technologies, collectively. For the avoidance of doubt the Services does not incorporate and include Your Content or Generated Content.
- “Site” means the web site located at layer.ai or any successor URL.
- “Supplemental Terms” means additional terms that apply to certain Services, including any product-specific terms that may be agreed by the Parties.
- “Support” means any free, fee-based, community-based or individualised help with the Services that may be available to you by email, meetings or other communication modes available now or in the future, at Layer’s sole discretion.
- “Term” means the Initial Term plus any and all Renewal Terms, collectively, as further defined in Section 10.
- “Third-Party Content” means any information, data, text, graphic files, content or other material obtained by us from publicly available sources or third-party content providers and made available to you and your Users through the Services, Evaluation Services or pursuant to an Order.
- “Usage Data” means: (i) data generated by aggregating Your Content with other content so that the results are non-personally identifiable with respect to You or Your Users; (ii) learnings, logs, and data regarding use of the Services.
- “User” means an individual who is authorised by you to use the Services, for whom you (or us at your request) has supplied a user identification and password either manually or using third-party authentication service (e.g., Google via OAuth). Users may include, for example, your employees, consultants, contractors, representatives and/or agents.
- “Your Content” means all content, including but not limited to texts, images, content, assets, designs, communication, or material, such as audio files, video files, electronic documents, images, or personal data received by the Services from you or any Users in the course of your accessing or using the Services, excluding Third-Party Content and Generated Content. For the avoidance of doubt, Your Content includes all property, including Intellectual Property, owned or controlled by You that You or any of your Users uploads, imports into, embeds for use by in the course of your accessing or using the Services.
2. Your Acceptance of the Terms of this Agreement and any Changes to It. We provide the Services to you through the Site, pursuant to this Agreement. By entering into an Order or otherwise downloading, accessing or using the Services, you unconditionally accept and agree to all of the terms of this Agreement. This Agreement shall apply to all usage by you and each User of the Services. We may modify this Agreement at any time by posting a revised version at https://layer.ai/terms-of-service/, which modifications will become effective as of the first day of the calendar month following the month in which the modifications were first posted. In either case, if any change to this Agreement is not acceptable to you, as your sole and exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew, in accordance with the terms set forth in Section 10. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
3. Agreement Structure and Order of Precedence. If there are any conflicts between this Agreement and any Order, the Order takes precedence and prevails over this Agreement, solely with respect to the subject matter of the applicable Order.
4. Free Evaluations. From time to time, we may invite you and/or your Users to try certain features or products at no charge for a free trial or evaluation period (collectively, “Evaluation Services”). Evaluation Services may be designated or identified as beta, pilot, evaluation, trial or the like. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EVALUATION SERVICES ARE LICENSED FOR YOUR INTERNAL EVALUATION PURPOSES ONLY (AND NOT FOR PRODUCTION USE), ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR INDEMNITY OF ANY KIND AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO ANY EVALUATION SERVICES OR ANY FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE OUR LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING ANY FREE TRIAL SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU OR ANY USER THAT: (A) YOUR USE OF THE SERVICES DURING ANY FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, AND (B) YOUR USE OF THE SERVICE DURING ANY FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICE DURING ANY FREE TRIAL PERIOD, ANY BREACH BY YOUR OR ANY OF YOUR USERS OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER. Unless otherwise stated in an Order, any Evaluation Services trial period shall expire thirty (30) days from the free trial start date. Notwithstanding the foregoing, we may discontinue Evaluation Services at any time at our sole discretion and may never make any Evaluation Services generally available. We shall have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
- We Own the Services. The Services are the property of us and our licensors. Subject to the limited rights we expressly grant to you in this Agreement, we and our licensors reserve all of our and our licensors’ right, title and interest in and to the Services, respectively, including all of our and our licensors’ related Intellectual Property Rights. We grant no rights to you or any User pursuant to this Agreement other than as expressly written.
- You Own Your Content. As between you and us, (a) Your Content is your property, and (b) you retain any and all rights, title and interest in and to Your Content. Our use of Your Content shall be limited to our providing the Services to you and your Users or as otherwise permitted under this Agreement. You represent and warrant that you own all right, title, and interest in and to Your Content or have duly obtained necessary licences and authorizations from the relevant right holders to use Your Content in conjunction with the Services and the Generated Content, including without limitation, all copyrights and rights of publicity contained therein. You are responsible for Your Content, including for ensuring any Content Sharing does not violate any applicable law, Intellectual Property Right of any third party, or these Terms.
- You Own Generated Content. As between you and Layer, you own the Generated Content that you produce using the Services to the extent permitted by applicable law. Parties agree that all rights, title and interest arising from or in any way related to Generated Content shall vest in and inure to the benefit of You. You shall at your sole discretion apply for and secure any and all registrations securing a trademark, copyright, intellectual property right or other registration(s) for Generated Content, any derivatives thereof, or any part thereof. Layer makes no representation or warranty as to the validity or enforceability of any Intellectual Property Rights that you may claim in your Generated Content.
We shall not, during the term of this Agreement or at any time thereafter, commit any act which in any way contests or impairs your (or your parent’s, subsidiaries’, or affiliated companies’, as applicable) rights in and to Generated Content, nor shall Layer represent that it has any ownership rights in and to Generated Content. Nothing in this Agreement shall give or be construed as giving Layer any right, title, or interest in and to Generated Content, or any derivatives, adaptations, modifications, translations or versions thereof.
You are responsible for Generated Content, including for ensuring any Content Sharing does not violate any applicable law, Intellectual Property Right of any third party, or these Terms. Layer shall have no liability for any third-party claim, (a) contesting or otherwise disputing your ownership of or authority to use Your Content (and/or Generated Content, due to the infringing nature of Your Content); or (b) Your Content (and/or Generated Content, due to the infringing nature of Your Content) infringing Intellectual Property Rights or any other rights of a third-party.
Either Party that discovers any third party infringement of the Intellectual Property Rights determined herein shall immediately notify the other party.
- We Need a Limited License to Your Content and Generated Content to Provide the Services. You hereby grant us, and our Affiliates and applicable contractors a worldwide, non-exclusive, royalty-free, non-sublicensable, non-transferable [except as specified in Section 16(b)], licence to receive, host, store, analyse, process, enhance, copy, transmit, create derivative works of, maintain and display (i) Your Content, (ii) Generated Content (x) to provide the Services in accordance with this Agreement, and (y) to generate Usage Data which we may use for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve our products and services). For the avoidance of doubt, we shall own all right, title and interest in and to the Usage Data including without limitation all Intellectual Property Rights therein. Subject to the limited licences granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Content or Generated Content.
6. Feedback. You hereby grant to us a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services and otherwise utilise Feedback in the design of our and our Affiliate’s products and to design, debug, display, perform, copy, make, have made, use, sell, and otherwise dispose of and support our and our Affiliate’s products and services embodying such Feedback in any manner and via any media we may choose. The Parties agree that all Feedback, if any, is and shall be given entirely voluntarily.
7. Our Licence to You and How You and Your Users May Use the Services.
- Our Licence to You. The Services and Documentation contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms of this Agreement, each Order and your payment of all Fees described in each Order, we grant to you and each of your Users a non-sublicensable, non-exclusive, non-transferable, worldwide licence to access and use the Services during the applicable Service Term.
- Some Restrictions on Your Use of the Services. Subject to the terms of this Agreement and the AUP, you and your Users may access and use the Services only for lawful purposes. All rights, title and interest in and to the Services and its components, and all related Intellectual Property Rights shall remain with and belong exclusively to us. Neither you nor any User shall (or permit any third party to) (i) modify, reverse engineer or attempt to hack or otherwise discover any source code or underlying ideas or algorithms of the Services (except to the extent that applicable law prohibits reverse engineering restrictions); (ii) sell, resell, license, sublicense, provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Services for the benefit of any third party; (iii) use the Services, or allow the transfer, transmission, export, or re-export of the Services or portion thereof, in violation of any export control laws or regulations administered by any government agency; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or Intellectual Property Rights; (v) use the Services to store or transmit Malicious Code; (vi) interfere with or disrupt the integrity or performance of the Services or its components; (vii) attempt to gain unauthorised access to the Services or its related systems or networks; (viii) permit direct or indirect access to or use of the Services in a way that circumvents any contractual usage limit; (ix) copy the Services or any part, feature, function or user interface thereof, or otherwise access the Services, in order to build a competitive product or service; or (x) use the Services for any purpose other than as expressly licensed herein.
- Some Obligations with Regard to Use of the Services. You are solely responsible for your use of the Services, including your use of Your Content and Generated Content, and the consequences of your Content Sharing. You shall (i) be responsible for your Users’ compliance with this Agreement; (ii) be responsible for the quality and legality of Your Content and the means by which you acquired Your Content; (iii) use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify us promptly of any such unauthorised access or use that you become aware of; (iv) use the Services only in accordance with the AUP and applicable laws and government regulations; (v) provide all necessary disclosures to Users and obtain all necessary consents from Users, in each case to the extent necessary to share such Users’ personal information with Layer and for Layer and its Affiliates, licensors and service providers to use such personal information to provide the Services; (vi) comply with the terms of our AUP; and, (vii) comply with all data protection laws applicable to your use of the Services. You and your Users are responsible for maintaining the security of your accounts and passwords. We cannot and shall not be liable for any loss or damage from your or any of your User’s failure to comply with this security obligation.
- Consequences if You Don’t Use the Services as Agreed. You shall, and shall ensure that all your Users, comply with the terms and conditions of this Agreement, including, without limitation, with your obligations set forth in this Section 7. You shall promptly notify us of any suspected or alleged violation of this Agreement and shall cooperate with us with respect to: (i) investigation by us of any suspected or alleged violation of this Agreement and (ii) any action by us to enforce this Agreement. We may, in our sole discretion, suspend or terminate your or any User’s access to the Services with or without written notice (including, but not limited to email) to you in the event that we reasonably determine that you or a User has violated this Agreement. Additionally, we may remove Your Content or Generated Content from the Services (or disable access to it) in accordance with our Copyright Infringement Notice and Takedown Policy located at layer.ai/copyright-infringement-policy. You shall be liable for any violation of this Agreement by any of your Users.
- Removal of Third-Party Content. If we send you a notice that any Third-Party Content must be removed from the Services, modified and/or disabled to avoid violating applicable law, third-party rights, or the terms of this Agreement, you shall promptly do so. If you do not take the required action, or if, in our judgement, continued violation is likely to reoccur, we may disable or remove the Third-Party Content from the Services. If we request it, you shall confirm such deletion and discontinuance of use in writing and you hereby authorise us to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if we are required by any third-party rights holder to remove Third-Party Content, or we receive information that Third-Party Content provided to you via the Services may violate applicable law or third-party rights, we may discontinue your access to such Third-Party Content through the Services.
8. How We Provide the Services.
- As part of the registration process for the Services, each User shall generate a username and password for its Layer account (“Account”), either manually or through a third-party authentication service (e.g., Google via OAuth). Each User is responsible for maintaining the confidentiality of their username, password and Account and for all activities that occur under any such username or the Account. We reserve the right to access your and any User’s Account in order to respond to your and any Users’ requests for Support. We have the right, but not the obligation, to monitor the Services, Your Content and Generated Content.
- We may attempt to provide Support for the Services if and when we are able, and all Support requests should be directed to firstname.lastname@example.org. We do not have any obligation to provide Support and make no representation or warranty that Support will be available or effective. Layer is not liable for any disruption or loss you may suffer as a result or a disruption in the Services. We recommend that you regularly backup any data, information and content you store on the Services.
- The operation of the Services, including Your Content and Generated Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to our third-party vendors and hosting partners solely to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you bear sole responsibility for adequate backup of Your Content and Generated Content. We shall have no liability to you for any unauthorised access or use, any corruption, deletion, destruction or loss of any of Your Content and Generated Content. That said, we will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content and Generated Content, as more fully addressed in Section 15.
- You shall be responsible for maintaining the security of your and each of your Users’ Accounts, all usernames and passwords (including but not limited to administrative and User passwords) and files, and for all uses of your and any User’s Account with or without your knowledge or consent.
9. Fees and Payment.
- You shall pay us the fees set forth in each Order by and between you and us, in accordance with the terms set forth therein and this Agreement (“Fees”). Except as otherwise provided in an Order: (a) prices for Services are set forth on the Pricing Page; (b) Fees are charged monthly in advance, except for Fees for overages, which are charged in arrears; and (c) Fees must be paid in U.S. dollars. All amounts paid or payable are non-refundable, non-cancelable and non-creditable. Unless otherwise stated in an Order, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. “Taxes” mean all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, and other licence or business and occupations taxes. For purposes of this Section 9(a), Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes. If you are paying any Fees by credit card, you shall provide us complete and accurate information regarding the applicable credit card. You represent and warrant that all such information is correct and that you are authorised to use such credit card. You shall promptly update your account information with any changes (for example, a change in billing address or credit card information) that may occur. You hereby authorise us to bill such credit card (a) in advance on a periodic basis, in accordance with the terms of this Agreement and an Order; and (b) in arrears for any applicable overages, in accordance with the terms of this Agreement and an Order, and you further agree to pay any and all charges so incurred. You shall maintain, and we shall be entitled, to audit any records relevant to your or any of your Users’ use of the Services hereunder. We may audit such records on reasonable notice at our cost (or if the audits reveal material non-compliance with this Agreement, at your cost).
- We reserve the right to modify the Fees for the Services under one or more Orders, effective upon commencement of the next Renewal Service Term of the relevant Order(s), by notifying you in writing of the change in Fees before the end of the then-current Service Term.
- For any upgrade in a subscription level with a month-to-month Service Term, we shall automatically charge you the new subscription Fee (or a prorated portion of new subscription Fee if the service upgrade is requested prior to the end of the then-current Service Term), effective as of the date the service upgrade is requested and for each subsequent one-month recurring cycle pursuant to the billing method applicable to you. If we are providing you the Services pursuant to a yearly Service Term, we shall immediately charge you any increase in subscription level plan cost pursuant to the billing method applicable to you, prorated for the remaining Service Term of your yearly billing cycle; provided, however, any decrease in a subscription level plan cost shall only take effect upon the commencement of the subsequent Renewal Service Term. Any downgrade of your subscription level may cause the loss of features or capacity of your and your Users’ Accounts. We do not accept any liability for such loss.
- If any amount owing by you under this Agreement for the Services is ten (10) or more days overdue, we may, in our sole discretion and without limiting our other rights and remedies, suspend your and any of your User’s access to the Services and/or otherwise limit the functionality of the Services until such amounts are paid in full, or terminate the Account in accordance with Section 10(f) below. If we suspend, limit, or terminate the Services pursuant to this Section 9(d), then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions. Additionally, any payments more than ten (10) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law.
- You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding any future functionality or features.
10. Term and Termination.
- Term of Agreement. This Agreement shall begin on the Effective Date and continue in effect until all Orders expire or are terminated in accordance with Section 10(f).
- Termination of Agreement; No Termination for Convenience. Neither Party shall have the right to terminate this Agreement without legally valid cause (a/k/a “for convenience”). Each Party may terminate this Agreement only by terminating it in accordance with Section 10(f) for all Orders then in effect.
- Effect of Expiration or Termination of Agreement. Sections 3 (Agreement Structure and Order of Precedence), 5 (Ownership), 10 (Term and Termination), 11 (Your Indemnification of Us), 12 (Our Indemnification of You), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 15 (Security and Privacy), and 16 (Miscellaneous) of this Agreement shall survive any expiration or termination of this Agreement. The applicable Orders may identify additional terms that shall survive any expiration or termination of this Agreement. Regardless of the basis for expiration or termination of this Agreement, (i) upon expiration or termination of an Order or this Agreement, you shall immediately be unable access and use the Services and (ii) we shall not be obligated to retain Your Content and Generated Content for longer than thirty (30) days after any such expiration or termination, and thereafter we may, in our sole discretion, delete all of Your Content from the Services and such information cannot be recovered once your Account or any User Account is terminated.
- Term of Orders. The term of a particular Order shall be set forth therein, starting on the effective date of the Order as specified therein and continuing for the initial term specified therein (“Initial Service Term”).
- Automatic Renewal. PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS. Unless otherwise set forth in the applicable Order, or unless the Order is terminated in accordance with Section 10(f), upon expiration of the Initial Service Term, the relevant Order shall automatically renew for a subsequent renewal term of equal length to the then-current Service Term (each a “Renewal Service Term”), unless either Party notifies the other Party in writing, (i) for a twelve month Service Term, at least thirty (30) days prior to the end of the then-current Service Term; or (ii) for a month-to-month Service Term, prior to the end of the then-current Service Term, that such Party chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term."
- Termination of Orders. Either Party may terminate any Order in accordance with its terms. If not specified in the applicable Order, then either Party may terminate any Order for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving a reasonably detailed written notice from the other Party alleging the breach; and we may terminate any Order for cause upon written notice (i) within ten (10) days in the case of non-payment; and (ii) immediately in the case of your or any of your User’s breach of Section 7(b) or Section 7(c). Upon any termination of this Agreement due to Layer’s uncured material breach of this Agreement, Layer will provide a refund to you for any prepaid and unused fees paid under this Agreement on a prorated basis. Termination is not an exclusive remedy and all other remedies shall be available whether or not termination occurs.
- Termination of Free Accounts for Non-Use. In the case of a free trial or our otherwise providing the Services at no cost to you, we shall have, upon your or any of your Users failing to use the Services for more than six (6) consecutive months, the right, in our sole discretion, to (i) terminate all of your Accounts and your User Accounts and terminate your and all your Users’ access to and use of the Services; and (ii) permanently delete all of Your Content from the Services without notice.
11. Your Indemnification of Us. You shall at your own expense, indemnify, hold harmless and defend us and our Affiliates, and each of their officers, directors, employees and agents (the “Layer Indemnitees") from any reasonable damages, settlements, attorneys’ fees and expenses related to any third-party claim, suit or demand (i) arising from your or any User’s use of the Services in breach of this Agreement or in violation of applicable law, or (ii) alleging that Your Content or Generated Content infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law; provided you are promptly notified of any and all threats, suits, claims and proceedings related thereto and given reasonable assistance by the applicable Layer Indemnitees (at your cost). Each applicable Layer Indemnitee reserves the right to assume the exclusive defence and control of any matter that is subject to indemnification under this Section 11. In such case, you and your Users agree to cooperate with any reasonable requests in assisting each applicable Layer Indemnitee’s defence of such matter.
12. Our Indemnification of You. Layer shall at its own expense, indemnify, hold harmless and defend or, at its option, settle any claim or action brought against You and our Affiliates, and each of their officers, directors, employees and agents (the “Your Indemnitees") alleging that the possession or use of the Service and Generated Content as produced through use of the Service in accordance with this Agreement infringes the Intellectual Property Rights of a third party (“Claim”); and shall be responsible for any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against Your Indemnitees as a result of such Claim.
In the event You receive any Claim or a third person notifies an intention to You to make a Claim, You shall (i) promptly give written notice of the Claim to Layer, (ii) not make any admission of liability, agreement or compromise with regard to the Claim without Layer’s prior written consent, (iii) give Layer access to its relevant assets, documents, systems and records to enable Layer and its advisors who are legally or contractually bound by confidentiality to assess the Claim. Layer’s obligation to indemnify pursuant to this Section 12 is conditional on You complying with this paragraph.
For the avoidance of doubt, this Section 12 shall not apply where the Claim is caused by (i) Your use of the Product in breach of the terms of this Agreement or (ii) Your Content infringing the Intellectual Property Rights or any other rights of the person who makes the Claim.
13. DISCLAIMER OF WARRANTIES. THE SERVICES, INCLUDING THE SITE, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AND YOUR USERS ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES; AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU OR YOUR USERS FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL WE BE LIABLE TO YOU, ANY USER OR ANY THIRD-PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES; OR (B) ANY DIRECT DAMAGES, COST, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR OR YOUR USER’S CLAIM OR, IF NO FEES APPLY, ONE THOUSAND DOLLARS (US$1000.00). THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISK UNDER THIS AGREEMENT BETWEEN THE PARTIES AND PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR SOME USERS. IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. Privacy and Security.
- California Consumer Privacy Act. Layer represents and warrants to you that (i) it is acting as a service provider in connection with this Agreement with respect to the California User Data, and (ii) it receives the California User Data from you pursuant to a business purpose. You represent and warrant to Layer that you (i) are acting as a business in connection with this Agreement with respect to the California User Data, and (ii) are sharing and making available to Layer the California User Data pursuant to a business purpose and in accordance with the CCPA. Layer shall not (i) sell California User Data or (ii) retain, use or disclose California User Data (X) for any purpose other than for the specific purpose of performing the Services or for a commercial purpose other than providing the Services, or (Y) outside of the direct business relationship between Layer and you. Layer certifies that it understands and will comply with the restrictions in the previous sentence. “California User Data" means the personal information of consumers provided or made available by you to Layer. “CCPA" means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time. The terms “business", “business purpose", “consumer", “personal information", “sell" and “service provider" as used in this paragraph have the meaning set forth in the CCPA.
- Security of the Services; Protection of Your Content. We shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content or Generated Content. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorised access to or disclosure of Your Content or Generated Content (other than by you or your Users). We shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Your Content or Generated Content that does not arise from a breach by us of our obligations under this Section 15(c).
- Governing Law; Dispute Resolution. This Agreement, and any disputes arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of England & Wales.
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, or any non-contractual obligation arising out or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the Rules of Arbitration of the LCIA in effect at the time of the arbitration ("Rules"), which are deemed to be incorporated by reference into this clause. The tribunal shall consist of one arbitrator who shall be appointed by the LCIA Court in accordance with the Rules. The seat of the arbitration shall be London, England. The language of the arbitration shall be English. Any award of the tribunal shall be binding from the day it is made, and the claimant(s)/respondent(s) hereby waive any right to refer any question of law and any right of appeal on the law and/or merits to any court. Nothing in these dispute resolution provisions shall be construed as preventing the Parties from seeking conservatory or similar interim relief in any court of competent jurisdiction.
The Services are a service, not goods, and are not subject to the Uniform Commercial Code, or the United Nations Convention on the International Sale of Goods.
- Assignment. Neither Party may assign or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer this Agreement, including all associated Orders (and all its rights and obligations thereunder), (i) to a successor-in-interest in connection with a merger, acquisition, reorganisation, a sale of all or substantially all of its assets, or other change of control, or (ii) to any of its Affiliates. In the event of such a permitted transfer by you, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order prior to the transfer (e.g., any transaction volume terms and limitations to particular your legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this Section 16(b) is void. Subject to the terms of this Section 16(b), this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and transferees. There are no third-party beneficiaries under this Agreement.
- Force Majeure. Except for the payment obligations hereunder, if either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, "Force Majeure”), the affected Party’s performance shall be excused for the resulting period of delay or inability to perform. The affected Party must, however, (a) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the period of delay or inability to perform, (c) periodically notify the other Party of significant changes in the status of the Force Majeure, and (d) notify the other Party promptly when the Force Majeure ends.
- Independent Contractors. The Parties are independent contracting parties. Neither Party has, or shall hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement shall not be construed as a joint venture, partnership, franchise, employment, fiduciary, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing, in the English language, and shall be deemed to have been given: (i) in case of personal delivery, upon receipt of the same by an authorised representative of the recipient; (ii) in the case of notice sent by letter, upon delivery of the same; (iii) in the case of notice sent by telefax or e-mail, upon express acknowledgement (also by telefax or e-mail, as the case may be) of receipt of transmission by the recipient (provided email shall not be sufficient for notices of material breach, termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you on the applicable Order. All other notices to you shall be addressed to the relevant contact designated by you on the applicable Order. All notices to us shall be sent to us to our contact at the address set forth on the applicable Order.
- Anti-Corruption. You acknowledge that you have not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any of our employees, representatives or agents in connection with this Agreement. You shall use reasonable efforts to promptly notify us if you become aware of any circumstances that are contrary to this acknowledgment.
- Execution. This Agreement and any Order may be signed electronically and in counterparts, in which case each signed copy shall be deemed an original as though both signatures appeared on the same document.
- Severability. If any provision of this Agreement or any Order shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement and any applicable Order shall otherwise remain in full force and effect and enforceable.
- Waiver. A Party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise.
- Entire Agreement. This Agreement, together with all applicable Orders, the AUP, and if applicable, any Supplemental Terms (including any other terms referenced in any of those documents), comprises the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter.