GRETEL.AI SUBSCRIPTION SERVICES AGREEMENT

Effective October 20, 2022

PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THIS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”, ALSO REFERRED TO ELSEWHERE AS OUR “TERMS OF SERVICE”) GOVERNS YOUR USE OF THE SUBSCRIPTION SERVICES (AS DEFINED BELOW) PROVIDED BY GRETEL LABS, INC. (“GRETEL.AI”), INCLUDING BUT NOT LIMITED TO, ANY FREE, TRIAL, BETA OR PAID SUBSCRIPTION SERVICES OR SOFTWARE.

By clicking on the “Sign Up” button (or any similar button) that is presented to you at the time of sign-up, by accessing or using the Subscription Services, or by otherwise indicating your acceptance of an Order, you agree to be bound by this Agreement. Gretel.ai may modify this Agreement from time to time, subject to the terms in Section 5.1 (Changes to this Agreement) below.

The terms “you,” “your,” and “Customer” are used interchangeably throughout the Agreement and have the same meaning. You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement on behalf of a company (such as  your employer) or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Gretel.ai that you have the authority to bind such Entity to this Agreement, in which case the terms “you,” “your,” "Customer", or a related term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not access or use the Subscription Services.

1. Overview. This Agreement governs the access and use of Gretel.ai’s cloud-based solutions that are provided as part of a subscription or require a Gretel.ai account, along with any software made available by Gretel.ai in connection with such cloud-based solutions (“Gretel.ai Software”) and Gretel.ai’s application programming interfaces (“APIs”) made available in connection with such cloud-based solutions (collectively, the “Subscription Services”). Your Use of any particular Subscription Service is subject to the existence of a valid Order, which is not binding until accepted by Gretel.ai. “Order” means (a) an ordering document for a Subscription Service at a particular Subscription Tier, agreed upon by the parties and referencing this Agreement, or (b) the electronic order confirmation for the Subscription Services and Subscription Tier you selected through your Gretel.ai account dashboard. Orders created by you through your Gretel.ai account dashboard are deemed accepted when Gretel.ai provides you with access to the Subscription Service you selected. All Orders are non-cancelable and non-refundable except as expressly stated in this Agreement.
2. Certain Definitions.

“Authorized User” means any person that you allow to access and use the Subscription Services, and may include your employees, contractors, service providers, and other third parties that use the Subscription Services in connection with your own business operations.

“Customer Data” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by you or on your behalf through the Subscription Services or to Gretel.ai in connection with your use of the Subscription Services, but excluding, for clarity, Service Data and any other information, data, content or other materials owned or controlled by Gretel.ai and made available through or in connection with the Subscription Services. 

“Documentation” means product and user documentation, training materials, specifications, minimum system configuration requirements, acceptable use policies, API and capacity limitations, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Gretel.ai to you (including any revised versions thereof) relating to the use of the Subscription Services, which may be updated from time to time.

“Gretel.ai Technology” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, including Gretel.ai Software and APIs, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship). 

“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

“Service Data” means all data, models, observations, reports, analyses, statistics, databases and other information created, compiled, analyzed, generated or derived by Gretel.ai from server, network or traffic data generated by Gretel.ai in the course of providing the Subscription Services.

“Subscription Tier” means the Subscription Services plan you have ordered, including the terms, pricing, limits, volume or other measurement or conditions of permitted use by you and Authorized Users for the Subscription Service, and any applicable Gretel.ai Software or APIs, as set forth on Gretel.ai’s pricing page (https://gretel.ai/pricing) or otherwise agreed or referenced in the applicable Order.

3. Subscription Services; Access and Use.

3.1. Access to Subscription Services and Support. Conditioned on your compliance with this Agreement (including, without limitation, all payment obligations), Gretel.ai grants you a limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Subscription Services specified in your Order in accordance with its Documentation during the applicable Subscription Term, solely for your internal business purposes and subject to the limits and conditions corresponding to your Subscription Tier. During the Subscription Term, Gretel.ai will use commercially reasonable efforts to provide you with basic customer support for the applicable Subscription Services through its standard support channels during its normal business hours as described on the Gretel.ai website (www.gretel.ai). Gretel only offers support via email, in-service communications and electronic messages and does not offer telephone support.

3.2. License to Gretel.ai Software. In connection with your use of the Subscription Services, Gretel.ai may provide certain Gretel.ai Software, as may be stated or referenced in an applicable Order, that is intended to or may optionally be installed and executed in your computing environment. Conditioned on your compliance with this Agreement, Gretel.ai grants you a limited, non-exclusive, non-transferable and non-sublicensable license to install and execute such Gretel.ai Software specified in your Order in accordance with its Documentation in a computing environment owned or controlled by you during the specified Subscription Term, solely for your internal business purposes and solely in connection with your use of the applicable Subscription Service and subject to the limits and conditions corresponding to your Subscription Tier. You will reproduce all of Gretel.ai’s and its licensors’ copyright notices and any other proprietary rights notices contained in the Gretel.ai Software (and not remove or alter any of the foregoing) in all copies that you make.

3.3. Open Source Software. Gretel.ai may package or otherwise make the Subscription Services or associated Gretel.ai Software available with software or other material that is distributed as “free software,” “open source software” or under similar licensing or distribution models, including the GNU General Public License, GNU Lesser General Public License, Mozilla Public License, BSD licenses, the MIT license, the Apache License and other such licenses, whether or not recognized or approved by the Free Software Foundation or the Open Source Initiative (“Open Source Software”), as noted in the Documentation. All such Open Source Software is licensed to you exclusively under the terms of their applicable licenses, including all warranty disclaimers and limitations on liability therein, and the restrictions set forth in this Agreement do not apply to such Open Source Software.

Notwithstanding the foregoing, the licenses granted to you in this Section 3 does not include the right to, and you will not, and you will not permit any other individual or entity to, modify, combine, integrate or otherwise use the Subscription Services or any associated Gretel.ai Technology with Open Source Software or any other software or materials in such a manner that requires, or could require, the Subscription Services or any associated Gretel.ai Technology, in whole or part, to be (a) disclosed or distributed to third parties in source code form, (b) licensed to third parties for the purpose of making derivative works, or (c) redistributable by third parties at no charge, including under the terms of the GNU General Public License version 3, the GNU Affero General Public License version 3, the GNU Lesser General Public License version 3, or any prior or successor versions or equivalents of the foregoing.

3.4 Restrictions. Unless otherwise expressly permitted in writing by Gretel.ai, you will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (a) use the Gretel.ai Technology in any manner beyond the scope of rights expressly granted in this Agreement or Order, including any limits and conditions corresponding to your Subscription Tier; (b) reproduce, modify or create derivative works of the Gretel.ai Technology or Documentation, in whole or in part; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to the Gretel.ai Technology, in whole or in part; (d) frame, mirror, sell, resell, distribute, sublicense or otherwise transfer or make available the Subscription Services or any associated Gretel.ai Technology or Documentation to any other Person, including by making any of the foregoing or their functionality available to any Person on a service bureau, time sharing, hosting or other computer services basis, including by providing a software-as-a-service, platform-as-a-service, infrastructure-as-a-service or other similar online service (a “XaaS Service”); (e) use the Subscription Services or any associated Gretel.ai Technology as part of a product or service, or to perform a service, that is offered to third parties, including by providing a XaaS Service; (f) use the Gretel.ai Technology or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law; (g) interfere with, or disrupt the integrity or performance of, the Gretel.ai Technology, or any data or content contained therein or transmitted thereby; (h) access or search the Gretel.ai Technology (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than by using features of the Gretel.ai Technology expressly provided by Gretel.ai for such purposes; or (i) use the Gretel.ai Technology, Documentation or any other Gretel.ai Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.

3.5. Authorized Users. You will not allow any Person other than Authorized Users to access or use the Subscription Services.  You may permit Authorized Users to access and use the Subscription Services as authorized pursuant to this Agreement and applicable Orders, provided that you ensure each Authorized User complies with all applicable terms and conditions of this Agreement. You are responsible for the acts or omissions of Authorized Users in connection with their access to and use of the Subscription Services.  You will, and will require all Authorized Users to, use all reasonable means to secure user names, passwords and other access credentials (such as API tokens and OAuth credentials) created by or assigned to you (“Credentials”), hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Gretel.ai if you know or reasonably suspect that any Credentials have been compromised. You are solely responsible for maintaining the confidentiality of all Credentials and for all activities that occur with such Credentials.

3.6. Third-Party Services.  Certain features and functionalities within the Subscription Services may allow you and your Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services.  Gretel.ai does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Subscription Services.

3.7. Government Use. The Subscription Services, associated Gretel.ai Technology and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use thereof.

3.8. Export Regulation. You affirm that you are not named on, owned by, or acting on behalf of any U.S. government denied-party list and agree to comply fully with all relevant export control and sanctions laws and regulations of the United States and any other applicable jurisdictions (“Export Laws”) to ensure that none of the Gretel.ai Technology, Documentation or Customer Data, nor any technical data related thereto is: (a) used, exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. You will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

3.9. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Gretel.ai reserves all rights, title and interest in and to the Gretel.ai Technology and Documentation, including all intellectual property rights therein. No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 

3.10. Feedback.  From time to time you or your Authorized Users may provide Gretel.ai with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”).  You hereby grant Gretel.ai a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Gretel.ai’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services and other Gretel.ai Technology.

3.11. Free & Trial Services. Gretel.ai may offer free or trial versions of the Subscription Services (“Free Services”) from time to time. With respect to each such Free Service, Gretel.ai will make each such Free Service available to you free of charge as set forth in each applicable Order until the earlier of (a) the end of the Subscription Term for the Free Service (if applicable); (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by Gretel.ai in its sole discretion. Notwithstanding Section 11 or 13, Gretel.ai will have no liability for any harm or damage arising out of or in connection with any Free Services.

3.12. Beta Services. From time to time, Gretel.ai may make non-production versions of the Subscription Services that are under development (“Beta Services”) available to you under applicable Orders. You may access these Beta Services at your sole discretion. Beta Services are intended for testing purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. Gretel.ai is not obligated to provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Subscription Term for Beta Services will terminate upon the earlier of 90 days from the testing start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Gretel.ai may discontinue, suspend, or remove Beta Services (including any Customer Data stored as part of the Beta Services) or your access thereto at any time in its sole discretion and may never make them generally available. In the event that a version of a Beta Service becomes generally available without the applicable Beta Service designation, you may be permitted to continue using the generally available Free Services or Paid Services, subject to additional Orders and terms as provided in the Agreement. You understand that any information you obtain regarding Beta Services is Gretel.ai’s Confidential Information, and you agree not to disclose such information except as provided herein, and to only use such information in connection with your use of the Beta Services. Notwithstanding Section 11 or 13, Gretel.ai will have no liability for any harm or damage arising out of or in connection with any Beta Services.

4. Subscription Terms; Billing. 

4.1. Subscription Terms. Subscription Services are provided to you on a subscription basis for the length of time specified for your Subscription Tier or otherwise stated in an applicable Order (“Subscription Term”). Unless otherwise specified, all of your subscriptions for Subscription Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at Gretel.ai’s then-current rates unless you cancel your subscription for the Subscription Services through the Gretel.ai account dashboard prior to your next scheduled billing date.

4.2. Billing. In order to access those Subscription Services for which Gretel.ai requires a fee (“Paid Services”), you will be required to provide Gretel.ai with your credit card information or other approved method of payment (“Payment Method”). By providing a Payment Method, you are authorizing Gretel.ai to charge your Payment Method on a monthly, annual, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that you sign up for or consume in accordance with each applicable Order. Gretel.ai will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.

Some Subscription Services or features are billed based on your usage. A limited level or quantity of these Subscription Service or features may be included in your Subscription Tier for a limited term without additional charge. If you choose to purchase such Paid Services beyond the quantity included in your Subscription Tier, you will pay based on your actual usage in the preceding month. Monthly payment for these purchases will be charged on a periodic basis in arrears.

4.3. Payment. Any Payment Method that you provide Gretel.ai must be valid and kept current by you during the Subscription Term. By providing Gretel.ai with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. If Gretel.ai cannot charge your selected Payment Method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and Gretel.ai will attempt to charge the payment method again as you may update your Payment Method information. In accordance with local law, Gretel.ai may update information regarding your selected Payment Method if provided such information by your financial institution. If you fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Gretel.ai may suspend the Subscription Services until all payments are made in full. You will reimburse Gretel.ai for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

4.4. Price Changes. Gretel.ai reserves the right to change the fees it charges for the Subscription Services, at any time in its sole discretion, provided that Gretel.ai gives you at least 30 days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to such fees will take effect in the billing period immediately following Gretel.ai’s notice to you.

4.5. No Refunds. FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Gretel.ai may, in its sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate Gretel.ai to provide additional Credits.

4.6. Taxes. Unless otherwise stated, Gretel.ai’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Gretel.ai as measured by its net income. Unless you provide evidence of an exemption, Gretel.ai will invoice and charge you for such Taxes if Gretel.ai believes it has a legal obligation to do so and you agree to pay such Taxes if so invoiced.

5. Changes.

5.1. To this Agreement. Gretel.ai reserves the right to make modifications to this Agreement at any time in its sole discretion by posting a revised version on the Gretel.ai website or by otherwise notifying you in accordance with this Agreement. Gretel.ai will use commercially reasonable efforts to provide at least 30 days’ advance notice, but in all events the modified terms will become effective upon the date specified in the posting or, if Gretel.ai notifies you by email, as stated in the email message. By continuing to use the Subscription Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Gretel.ai website and your email regularly for modifications to this Agreement and to keep your email address current. 

5.2. To the Subscription Services. Gretel.ai may change or discontinue any of the Subscription Services or their functionality, including any associated Gretel.ai Technology and Documentation, at any time in its sole discretion. Gretel.ai will use commercially reasonable efforts to provide at least 30 days’ notice prior to materially degrading or discontinuing material functionality of, or entirely discontinuing, a Paid Service you are using.

6. Suspensions. Gretel.ai may suspend your or any Authorized User’s right to access or use any portion or all of the Subscription Services immediately upon notice to you if Gretel.ai determines: (a) your or an Authorized User’s use of the Subscription Services (i) poses a security risk to the Subscription Services or any third party, (ii) could adversely impact Gretel.ai’s systems, the Subscription Services or the systems of any other Gretel.ai customers, or (iii) could subject Gretel.ai, its affiliates, or any third party to liability; (b) you are in breach of your payment obligations under Section 4; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If Gretel.ai suspends your right to access or use any portion or all of the Subscription Services: (a) you remain responsible for all fees you have incurred during or prior to the period of suspension; and (b) you will not be entitled to any refund or credit for any period of suspension. 

7. Termination.

7.1. For Convenience. You may cancel the Subscription Term for any or all Subscription Services at any time through the Gretel.ai account dashboard, effective at the end of their then-current Subscription Terms, and further terminate this Agreement upon the termination of all Subscription Terms by closing your account through the Gretel.ai account dashboard. Gretel.ai may terminate the Subscription Terms for any or all Subscription Services, and as applicable this Agreement and your account, for any reason by providing you at least 30 days’ advance notice, effective (a) at the end of their then-current Subscription Terms in which the notice is given, or (b) at the end of the next renewal term if your Subscription Term renews prior to the end of such 30 day period.

7.2. For Cause. Either party may terminate this Agreement, and the Subscription Terms for all Subscription Services, for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. Gretel.ai may also terminate the Subscription Terms for any or all Subscription Services, and as applicable this Agreement and your account, immediately upon notice to you: (a) if Gretel.ai has the right to suspend your access to and use of any Subscription Services under Section 6; (b) if Gretel.ai’s relationship with a third-party partner who provides software or other technology used to provide a Subscription Service expires, terminates or requires Gretel.ai to change the way Gretel.ai provide the software or other technology as part of the Services, or (c) in order to comply with applicable law or requests of governmental entities.

7.3. Effect of Termination. Upon termination of a Subscription Term, or as applicable this Agreement and your account: (a) the rights granted to you pursuant to Section 3 and applicable Orders will terminate and you will cease all use of applicable Gretel.ai Technology and Documentation, (b) you will immediately destroy or delete, or if instructed by Gretel.ai return, all applicable Gretel.ai Technology, Documentation and Confidential Information of Gretel.ai in your possession or control, including permanent removal (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments. No termination will affect your obligation to pay all fees that may have become due or otherwise accrued through the effective date of termination, or entitle you to any refund or credit. Gretel.ai will allow you to retrieve Customer Data for the applicable Subscription Services for a period of 30 days following the termination date only if you have paid all amounts due under this Agreement. Sections 2, 3.9, 3.10, 4, 7.3, 8, 9, 11, 13 and 14, will survive termination of this Agreement.

8. Confidential Information.

8.1. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Gretel.ai Technology and Documentation will be deemed Confidential Information of Gretel.ai. However, Confidential Information will not include any information or materials that: (a) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (b) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party without a duty of non-disclosure; (c) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (d) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. To the extent the terms and conditions of this Agreement or any Order constitute Confidential Information of either or both parties, each may be disclosed on a confidential basis to the parties’ advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

8.2. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. 

8.3. Each Party’s obligations of non-disclosure with regard to Confidential Information will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

9. Customer Data and Service Data.

9.1. As between you and Gretel.ai and you, you will retain all right, title and interest in and to your Customer Data, including all intellectual property rights therein. Subject to the terms of this Agreement, you hereby grant Gretel.ai a non-exclusive, worldwide, royalty-free right and license to access, use, store, reproduce, display, perform, modify and otherwise process the Customer Data solely for the purpose of hosting, operating, improving and otherwise providing the Subscription Services and appliable Gretel.ai Technology during the appliable Subscription Term.

9.2. You represent and warrant that (a) you have obtained and will obtain and continue to have, during all applicable Subscription Terms, all necessary rights, authority and licenses for the access, use and other processing of the Customer Data as contemplated by this Agreement, including any Personal Data (defined below) and (b) Gretel.ai’s access, use and other processing of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between you and any third party.

9.3. Gretel.ai retains all right, title, and interest in all Service Data, and will have the right to use Service Data for the purposes of providing, maintaining, developing, and improving the Subscription Services and appliable Gretel.ai Technology. Gretel.ai may monitor and inspect the traffic on the Gretel.ai network, including any related logs, as necessary to perform the Subscription Services. To the extent the Service Data includes any Personal Data, Gretel.ai will handle such Personal Data in compliance with applicable data protection laws.

10. Data Processing and Security.

10.1. Data Processing. If Customer Data includes the personal data of European data subjects as those terms are defined by EU and UK Data Protection Laws (collectively, “Personal Data”), then Gretel.ai is a data processor or sub-processor, as applicable, and Gretel.ai will handle such Personal Data in compliance with Gretel.ai’s Data Processing Addendum (“DPA”), as may be updated from time to time, which is hereby incorporated by reference into this Agreement (https://gretel.ai/data-processing-addendum). “EU and UK Data Protection Laws” means all Laws and regulations of the European Union, the European Economic Area, their member states, Switzerland, and the United Kingdom, applicable to the processing of Personal Data including (where applicable), the Swiss Federal Act on Data Protection, the UK Data Protection Act and the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data).

10.2. Security. Gretel.ai implements security procedures to help protect Customer Data from security threats. However, you understand that your use of the Subscription Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by it, and Gretel.ai is not responsible for any of Customer Data that is lost, altered, intercepted or stored across such networks. Gretel.ai cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat Gretel.ai’s security measures or those of its third party service providers.

11. Indemnification.

11.1. By Gretel.ai.  Subject to the exclusions set forth herein, Gretel.ai will defend you against any claim, suit or proceeding brought by a third party (“Claim”) alleging that your Use of the Paid Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold you harmless against any damages and costs awarded against you or agreed in settlement by Gretel.ai (including reasonable attorneys’ fees) resulting from such Claim. 

11.2. Exclusions. Gretel.ai’s obligations under Section 11.1 will not apply if the underlying third-party Claim arises from or as a result of: (a) your breach of this Agreement, negligence, willful misconduct or fraud; (b) any Customer Data; (c) your failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Gretel.ai; (d) modifications to the Subscription Services by anyone other than Gretel.ai; or (e) combinations of the Subscription Services with hardware, software, data or other materials not provided by Gretel.ai. 

11.3. Mitigation. If Gretel.ai reasonably believes the Paid Services (or any associated component of Gretel.ai Technology) could infringe any third party’s intellectual property rights, Gretel.ai may, at its sole option and expense use commercially reasonable efforts to: (a) modify or replace the Paid Services, or any component or part thereof, to make it non-infringing; or (b) procure the right for you to continue their use.  If Gretel.ai determines that neither alternative is commercially practicable, Gretel.ai may terminate this Agreement, in its entirety or with respect to the affected Paid Services, by providing written notice to you.  In the event of any such termination, Gretel.ai will refund to you a pro-rata portion of the fees that you paid for the unexpired portion of the Subscription Term. The rights and remedies set forth in this Section 11 will constitute your sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Paid Services. 

11.4. By You. You will defend Gretel.ai against Claims arising from: (a) the use of any Customer Data as contemplated in this Agreement, including, without limitation, any Claim that the any Claim that the use, provision, transmission, display, storage or other processing of Customer Data (i) infringes, misappropriates or otherwise violates any third party’s intellectual property rights or privacy or other rights or (ii) violates any applicable law, rule or regulation; or (b) use of the Subscription Services, or any associated Gretel.ai Technology, by you or your Authorized Users in a manner that is not in accordance with this Agreement, applicable Orders or the Documentation, including, without limitation, any breach of the limitations, restrictions and obligations in Section 3; and in each case, you will indemnify and hold harmless Gretel.ai against any damages and costs awarded against Gretel.ai or agreed in settlement (including reasonable attorneys’ fees) resulting from such Claim.

11.5. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount to be paid by the Indemnifying Party, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party. Notwithstanding the foregoing, Gretel.ai reserves the right, at its own expense, to assume the exclusive defense and control of any Claim otherwise subject to defense and indemnification by you (and without limiting your obligations with respect to such Claim), and in such case, you agree to cooperate with Gretel.ai’s defense of such Claim at your own expense.

12. Warranty Disclaimers. THE SUBSCRIPTION SERVICES, INCLUDING ALL ASSOCIATED GRETEL.AI TECHNOLOGY AND DOCUMENTATION, ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, GRETEL.AI EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Gretel.ai makes no warranty that the Subscription Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis or as to the quality, accuracy, timeliness, completeness or reliability of any information, content or results derived from the Subscription Services.

13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRETEL.AI WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES OR ANY ASSOCIATED GRETEL.AI TECHNOLOGY OR DOCUMENTATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GRETEL.AI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRETEL.AI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES OR ANY ASSOCIATED GRETEL.AI TECHNOLOGY OR DOCUMENTATION, WILL NOT EXCEED THE AMOUNTS YOU HAVE PAID TO GRETEL.AI FOR THE AFFECTED SUBSCRIPTION TERM. IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO GRETEL.AI, INCLUDING FOR FREE SERVICES OR BETA SERVICES, IN NO EVENT WILL GRETEL.AI’S TOTAL LIABILITY EXCEED ONE HUNDRED DOLLARS ($100).

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GRETEL.AI AND YOU.

14. General. 

14.1. Entire Agreement. This Agreement incorporates Gretel.ai’s Privacy Policy (https://gretel.ai/privacy-statement) by reference and constitutes the entire and exclusive understanding and agreement between you and Gretel.ai regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without Gretel.ai’s prior written consent. Gretel.ai may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect Gretel.ai’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

14.2. Governing Law. This Agreement will be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Gretel.ai agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.

14.3. Publicity. You agree to allow Gretel.ai to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page, to display your logo on the Gretel.ai website, and to otherwise refer to you in print or electronic form for marketing or reference purposes. If you do not wish for Gretel.ai to use your name or logo in any of the preceding ways, please contact marketing@gretel.ai.

14.4. Contact Information and Notices. The Subscription Services are offered by Gretel.ai, Inc., whose address for notice is PO Box 70097, Sunnyvale, California 94086. You may contact Gretel.ai by sending correspondence to the foregoing address or by emailing Gretel.ai at support@gretel.ai; provided, however, to give Gretel.ai legal notice under this Agreement, you must deliver such notices to Gretel.ai by personal delivery, overnight courier or registered or certified mail to the mailing address listed above. Gretel.ai may update the address for such notices by posting a notice on the Gretel.ai website. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

Gretel.ai may provide any notice to you under this Agreement by: (a) posting a notice on the Gretel.ai website; or (b) sending a message to the email address then associated with your account. Notices Gretel.ai provides by posting on the Gretel.ai website will be effective upon posting and notices Gretel.ai provides by email will be effective when Gretel.ai sends the email. It is your responsibility to check the Gretel.ai website and your email regularly for notices and to keep your email address current  You will be deemed to have received any email sent to the email address then associated with your account when Gretel.ai sends the email, whether or not you actually receive the email.

You agree that any notices, agreements, disclosures, or other communications that Gretel.ai sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.