Last updated April 9, 2024
Gen AI Trust Network ("GTN") is a product and service of TheFabrik, Inc (“Fabrik”, “Company”, “We”, “Us” or “Our”).
Fabrik provides its services (described below) to the entity or person accessing the Service ("Customer" or "you") through its applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). By accessing, browsing, or otherwise using the Site or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you are using the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Service on such entity’s behalf. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, USING OUR SERVICES, OR EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR RELATES TO THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THIS END USER SAAS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES. Fabrik PERMITS YOU TO PURCHASE, ACCESS, AND/OR USE THE SERVICES ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IF YOU REGISTER FOR AN UNPAID TRIAL OF OUR SERVICES OR OTHERWISE UTILIZE FREE CAPABILITIES, THIS AGREEMENT WILL ALSO GOVERN THAT UNPAID TRIAL, UNLESS OTHERWISE PROVIDED HEREIN.
Capitalized terms not otherwise defined in this Agreement have the definition ascribed to such terms in Exhibit A (Definitions).
This Agreement was last updated as of the date above. It is effective between you and Fabrik as of the earlier of: (a) the date you accept this Agreement or (b) the date you first access or otherwise use the Services.
1. UNPAID TRIALS. If Customer registers on the Fabrik website for an unpaid trial or otherwise utilizes the functionality of the Services for free, Fabrik will make one or more Services available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the unpaid trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s). CUSTOMER SERVICES DATA ON Fabrik SYSTEMS OR IN OUR POSSESSION OR CONTROL, ANY REPORTS, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR UNPAID TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE UNPAID TRIAL PERIOD UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR PURCHASES UPGRADED SERVICES BEFORE THE END OF THE TRIAL PERIOD. Fabrik WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH AN UNPAID TRIAL. NOTWITHSTANDING SECTION 7 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), DURING THE UNPAID TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the Documentation during the trial period so that you become familiar with the features and functions of the Services before you make your purchase.
2. FEES AND PAYMENT FOR PURCHASED SERVICES
2.1. Reseller Purchases. If Customer purchases the Services through a Reseller, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be set forth in Customer’s agreement directly with such Reseller and such payment-related terms will supersede any conflicting terms set forth in this Section 2. Fabrik may suspend or terminate your access to the Services in the event of non-payment of the applicable fees to Fabrik by the Reseller due to your non-payment, or Customer’s uncured breach of this Agreement. Notwithstanding anything to the contrary, the agreement between Customer and a Reseller: (i) shall not modify any of the terms set forth herein other than those portions of Section 2 related to billing and payments, and (ii) is not binding on Fabrik.
2.2. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable except as set forth in Section 3.4 below, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
2.3. Invoicing and Payment. Fees shall be invoiced in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of such invoice and payable net thirty (30) from the invoice date. Any payments not made within thirty (30) days of the receipt of such invoice shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Customer is responsible for providing complete and accurate billing and contact information to Fabrik and notifying Fabrik of any changes to such information. Customer acknowledges and agrees that Fabrik may engage third-party payment processors, to process online payments made by Customer hereunder, and that such payment processors will be provided your payment information in order to help us process your payment.
2.4. Overdue Charges. If any undisputed invoiced amount is not received by Fabrik thirty (30) days after the invoice date, then without limiting our rights or remedies (a) Fabrik may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 2.3 (Invoicing and Payment), and/or (b) Fabrik may require Customer to pay all reasonable collections or legal fees incurred by Fabrik in order to collect payment of the corresponding undisputed invoiced amount.
2.5. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Purchased Services is thirty (30) or more days overdue, Fabrik may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to Customer until such amounts are paid in full. Fabrik will give Customer at least 10 days’ prior notice, in accordance with Section 11, before Suspending Services to Customer pursuant to the foregoing.
2.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Fabrik has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 2.6, Fabrik will invoice Customer and Customer will pay that amount unless Customer provides Fabrik with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Fabrik is solely responsible for taxes assessable against Fabrik based on our income, property, and employees.
2.7. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Fabrik regarding future functionality or features.
3. TERM AND TERMINATION
3.1. Term of Agreement. This Agreement commences on the Effective Date set forth on the signature page and continues for so long as Fabrik is providing Services.
3.2. Term of Purchased Subscriptions; AUTO-RENEWAL OF SUBSCRIPTION TERM. The Subscription Term shall be, and shall renew, as specified in the applicable Order Form. If no such term or renewal period is specified, Subscriptions will have an initial term of one year and will automatically renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Subscription Term in accordance with Section 11.
3.3. Termination. A party may terminate this Agreement or any Order Form (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement or the relevant Order Form if such breach remains uncured at the expiration of such 30-day period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) upon ten (10) days’ written notice to the other party if the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
3.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer for material uncured breach in accordance with Section 3.3(i) or (iii), Fabrik will refund Customer any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. If this Agreement is terminated by Fabrik in accordance with Section 3.3, Customer will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Fabrik for the Subscription Term period prior to the effective date of termination.
3.5. Customer Services Data. After the effective date of termination or expiration of this Agreement, Fabrik will have no obligation to maintain or provide Customer Services Data, and may, in its sole discretion, delete or destroy all copies of Customer Services Data in our systems or otherwise in our possession or control, unless legally prohibited.
3.6. Surviving Provisions. The Sections that are intended by their nature to survive termination or expiration shall so survive any termination or expiration of this Agreement.
4. USE OF SERVICES; NON-Fabrik APPLICATIONS; AFFILIATES
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a Subscription Term, with the term for such additional subscription(s) to be prorated for the portion of that Subscription Term remaining at the time the mid-term subscriptions are added, and (c) any added subscriptions will terminate on the same date as the Subscription Term, subject to any automatic renewals that may apply as set forth below in Section 3.2.
4.2. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the applicable Order Form(s). If Customer exceeds its then-current contractual usage limit as set forth in the relevant Order Form, Customer may incur additional fees for excess usage if it does not reduce overuse within ten (10) days after notice from Fabrik and in such case, shall remit payment in accordance with Section 2 (Fees and Payment); Customer’s then-current contractual usage limit will automatically be increased to the new number of Vendors for the remainder of the Subscription Term and thereafter (if applicable).
4.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement and for all activities that occur through Users’ use of Services, (b) be responsible for the accuracy, quality and legality of Customer Services Data, including any obtaining all required consents or rights required to use Customer Services Data, (c) to prevent unauthorized access to or use of Services (including not sharing any User passwords), and notify Fabrik promptly of any such unauthorized access or use, and (d) if applicable, comply with the terms of service for any Non-Fabrik Application with which Customer uses the Services.
4.4. Usage Restrictions. Customer will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer or Users, including any part, feature, function or output of a Service, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or any part, feature, function or output thereof (e.g., reports, screenshots), or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) use a Service in violation of this Agreement, applicable laws or government regulations, or form otherwise fraudulent or malicious purposes, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to any Service or its related systems or networks, (h) use or permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) publish, display, or copy (provided that Customer and its Users can copy as reasonably necessary to its and their rights under this Agreement and in connection with ordinary course back-up and disaster recovery procedures) a Service or any part, feature, function, output, or user interface thereof (this includes a prohibition on any publication of ratings, scores, reports or components thereof), (j) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Customer receives or accesses through the Services; (k) frame or mirror any part of any Service, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in this Agreement, (l) access any Service in order to build a competitive product or service or use a Service in a way that competes with products or services offered by Fabrik, or (m) copy, adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify any Service or Fabrik’s website, through automated or other means.
4.5. Privacy.
4.5.1. Fabrik may collect personal information in connection with Customer’s use of the Services. Fabrik’s Privacy Policy describes what data is collected, the purpose of the collection, the means by which Fabrik processes such data, and the third parties with whom the data may be shared.
4.5.2. To the extent Customer provides personal information to Fabrik, Customer represents that it has complied with all Applicable Data Privacy Laws concerning its collection and disclosure of such information, and that it is not relying upon Fabrik to discharge any of customer’s obligations or responsibilities under Applicable Data Privacy laws.
4.5.3. With respect to the personal information that it receives from Customer or Users, Fabrik represents that it has and will independently comply with all obligations imposed by Applicable Data Privacy upon controllers, that it will not consider itself to be a joint controller with Customer, and that it will not rely upon Customer to perform any of Fabrik’s obligations as a controller.
4.6. Suspension. If Fabrik becomes aware of a User’s violation of this Agreement, then Fabrik may specifically request that Customer Suspend that User’s use of the Services. If Customer fails to comply with our request to Suspend a User’s use of the Services, then Fabrik may Suspend that User’s use of the Services. The duration of any Suspension by Fabrik will be until the applicable User has cured the breach that caused the Suspension. Notwithstanding the foregoing, if there is a Disruption Event, then Fabrik may automatically Suspend the offending use. The Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Disruption Event. If Fabrik Suspends a User’s use of the Services for any reason without prior notice to Customer, then at your request, Fabrik will provide Customer with the reason for the Suspension as soon as is reasonably possible.
4.7. Non-Fabrik Applications.
4.7.1. Acquisition and Use of Non-Fabrik Applications. Fabrik or third parties may make available third-party products or services, including, for example, Non-Fabrik Applications and implementation and other consulting services. If Customer elects to acquire or use such Non-Fabrik Applications, any exchange of data between Customer and any non-Fabrik provider is solely between Customer and the applicable non-Fabrik provider. Fabrik DOES NOT WARRANT OR SUPPORT NON-Fabrik APPLICATIONS OR OTHER NON-Fabrik PRODUCTS OR SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY Fabrik. SUCH NON-Fabrik APPLICATIONS ARE NOT UNDER THE CONTROL OF Fabrik AND Fabrik IS NOT RESPONSIBLE FOR THE PRODUCT, SERVICES, WEBSITE, OR CONTENT OF ANY THIRD-PARTY PROVIDER. Non-Fabrik Applications may be subject to additional terms and conditions between the provider of such Non-Fabrik Application and Customer, including terms related to the collection, use and processing of Personal Information. If Customer elects to acquire or use a Non-Fabrik Application, it is Customer’s responsibility to review and understand these additional terms.
4.7.2. Non-Fabrik Applications and Your Customer Services Data. If Customer installs or enables a Non-Fabrik Application for use with a Service, Customer grants Fabrik permission to allow the provider of that Non-Fabrik Application to access Customer Services Data as required for the interoperation of that Non-Fabrik Application with the Service. Fabrik is not responsible or liable for any disclosure, modification or deletion of Customer Services Data resulting from access by a Non-Fabrik Application. Fabrik is not responsible or liable to Customer if you install, connect, enable, use or share any integration, feature, workflows, actions, or suggestions authored or made available by an entity other than Fabrik.
4.7.3. Integration with Non-Fabrik Applications. The Services may contain features designed to interoperate with Non-Fabrik Applications. To use such features, Customer may be required to obtain access to Non-Fabrik Applications from their providers and may be required to grant Fabrik access to your account(s) on the Non-Fabrik Applications.
4.7.4. Use of Non-Fabrik Materials. Third parties may make available Non-Fabrik Materials using the Services for Customer to view, download or otherwise use. NON-Fabrik MATERIAL IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND Fabrik MAKES NO REPRESENTATION WITH RESPECT TO NON-Fabrik MATERIAL AND Fabrik WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH NON-Fabrik MATERIAL.
5. Fabrik RESPONSIBILITIES
5.1. Provision of Purchased Services. Fabrik will (a) make the Purchased Services available to Customer pursuant to this Agreement and the applicable Order Forms, and (b) provide standard support for the Purchased Services to Customer at no additional charge. Notwithstanding the foregoing, the Purchased Services may not be available due to: (i) planned downtime (of which Fabrik shall give advanced electronic notice through the Services or otherwise and which Fabrik shall schedule to the extent practicable during off peak times), and (ii) any events covered by Section 13.10. Fabrik reserves the right to make changes to the Services at any time and from time to time, provided, however, that Fabrik will not materially decrease the functionality of the Purchased Services during a Subscription Term. If Fabrik materially decreases the functionality to the Purchased Services, Fabrik will notify Customer of such change in accordance with Section 11.
5.2. Protection of Customer Services Data. Fabrik will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Services and the Customer Services Data. Those safeguards will include, but will not be limited to, safeguards to ensure the security of the information technology systems used to provide the Services, maintaining and testing (at least annually) an incident management program, and measures for preventing inappropriate access, use, modification or disclosure of Customer Services Data by Fabrik personnel. Fabrik will promptly inform Customer following discovery of any breach of security, confidentiality, and/or integrity of the Services or Customer Services Data affecting Customer.
5.3. Protection of Customer Services Data from Training of Large Language Models (LLMs). In addition to the protections disclosed in Section 5.2, Fabrik will implement and maintain the available technical safeguards to restrict Customer Services Data from being used to train LLMs in a way that could expose Customer Services Data to third-parties. These safeguards include ensuring that any third-party artificial intelligence providers restrict training of LLMs based on input and output containing Customer Services Data, or ensuring that Fabrik configurations of third-party artificial intelligence integrations have third-party training turned off when the option is available. Fabrik will promptly inform Customer following discovery of any breach of security, confidentiality, and/or integrity of the Services or Customer Services Data affecting Customer.
5.4. Beta Services. From time to time, Fabrik may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. Fabrik may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Fabrik WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Fabrik reserves all of its right, title, and interest in and to the Services and any proprietary materials of Fabrik contained therein, including all intellectual property rights therein and thereto, and Customer acquires no rights with respect to the Services, by implication or otherwise, except for those expressly granted in this Agreement. Customer reserves all of Customer’s rights, title and interest in Customer Services Data, provided that Fabrik may use Customer Services Data to create Generic Reports and as provided in Section 6.2 below. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Fabrik Rights to Use Customer Services Data. Customer grants Fabrik the right to use Customer Services Data, in compliance with applicable law, in order to: (a) provide the Services in accordance with this Agreement and the Privacy Policy, (b) communicate with any vendors or contacts provided by Customer, (c) prevent or address service or technical problems, (d) as Customer expressly permits, or (e) as may be required by law. Fabrik may also use Customer Services Data in an aggregated, de-identified and generic manner, in compliance with applicable law, for marketing, survey purposes, setting benchmarks, feature suggestions, product analytics and new product features or services (for the purposes of clarity, Customer does not grant Fabrik the right to use Customer Services Data for training LLMs that are not exclusive to Customer), Services utilization analyses and related purposes, provided that (i) it is used only for internal administrative purposes and general usage statistics; (ii) does not identify Customer or its agents, representatives, customers or employees and is not attributable to such persons or entities in any way; and (iii) where Customer Services Data is used in this manner to create publicly disclosed general usage statistics, such statistics are used to report only the total aggregate use among Fabrik customers.
6.3. License by Customer to Use Feedback. Customer grants to Fabrik a worldwide, perpetual, irrevocable, transferable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services, provided that Fabrik shall not identify Customer as the source of such feedback.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2. Fabrik Warranties. Fabrik warrants that: (a) the Purchased Services will perform materially in accordance with the specifications set forth in the Documentation; and (b) Fabrik has used commercially reasonable efforts to detect and prevent the introduction of Malicious Code into the Services. For any breach of the above warranties, Customer’s exclusive remedy and Fabrik’s sole obligation is those described in Sections 3.3 (Termination) and 3.4 (Refund or Payment upon Termination).
7.3. Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable (including applicable security breach notification law).
7.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR NON-Fabrik APPLICATIONS. THE SERVICES, IN WHOLE OR IN PART, DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE LEGAL ADVICE; ALL INFORMATION, CONTENT, AND MATERIALS INCLUDED IN THE SERVICES ARE FOR CUSTOMER’S GENERAL INFORMATIONAL PURPOSES ONLY. CUSTOMER SHOULD NOT ACT OR REFRAIN FROM ACTING ON THE BASIS OF INFORMATION OBTAINED BY USE OF THE SERVICES WITHOUT FIRST SEEKING LEGAL ADVICE FROM COUNSEL IN THE RELEVANT JURISDICTION.
8. LIMITATION OF LIABILITY
8.1. Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 2, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8.2. Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Fabrik. Fabrik will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly give Fabrik written notice of the Claim Against Customer, (b) give Fabrik sole control of the defense and settlement of the Claim Against Customer (except that Fabrik may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Fabrik all reasonable assistance, at our expense. If Fabrik receives information about an infringement or misappropriation claim related to a Service, Fabrik may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, without breaching the warranties under Section 7.2 (Fabrik Warranties), or (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, and if neither (i) or (ii) is commercially reasonable, (iii) terminate Customer’s subscriptions for that Service upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from: (i) a Non-Fabrik Application, (ii) Customer’s breach of this Agreement, (iii) Customer’s negligence, recklessness, gross negligence, or willful misconduct (iv) any use of the Services in combination with other products, equipment, software or data not supplied by Fabrik; or (v) any modification of the Services by any person other than Fabrik or its authorized representatives.
9.2. Indemnification by Customer. Customer will defend Fabrik against any claim, demand, suit or proceeding made or brought against Fabrik by a third party alleging that Customer Services Data, or your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Fabrik”), and will indemnify Fabrik from any damages, attorney fees and costs finally awarded against Fabrik as a result of, or for any amounts paid by Fabrik under a court-approved settlement of, a Claim Against Fabrik, provided Fabrik (a) promptly gives Customer written notice of the Claim Against Fabrik, (b) gives Customer sole control of the defense and settlement of the Claim Against Fabrik (except that Customer may not settle any Claim Against Fabrik unless it unconditionally releases Fabrik of all liability), and (c) gives Customer all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Fabrik arises from: (i) Fabrik’s breach of this Agreement, or (ii) Fabrik’s negligence, recklessness, gross negligence, or willful misconduct.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. CONFIDENTIALITY
10.1. Definition of Confidential Information. “Confidential Information” means all information and materials disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Fabrik Confidential Information includes the Services and any proprietary materials provided through the Services; Customer Confidential Information includes Customer Services Data; and Confidential Information of each party includes any proprietary pricing Customer might receive as a quote, offer, or in an Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession.
10.2. Protection of Confidential Information. The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations consistent with this Agreement. Receiving Party is fully responsible for the compliance of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents with the terms of this Section 10.
10.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
11. NOTICES. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to Fabrik shall be addressed to 49 Gerrish Lane, New Canaan, CT 06840; with copy to legal@thetrustfabrik.com. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer, in writing, by like notice.
12. GOVERNING LAW AND JURISDICTION. Each party agrees that this Agreement is governed by and shall be construed in accordance with the laws of the State of New York, in all respects, without regard to choice or conflicts of law rules, and that all disputes arising out of or relating to this Agreement are limited to the exclusive jurisdiction and venue of the state and federal courts located within New York County, New York. Each party hereby consents to and waives any objections with respect to such jurisdiction and venue.
13. MISCELLANEOUS
13.1. Entire Agreement and Order of Precedence. This Agreement, including any Order Forms, is the entire agreement between Customer and Fabrik regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (including any non-disclosure agreement between Customer and Fabrik where the sole purpose was to evaluate the subscription hereunder). No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision of this Agreement, an Order Form will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in any Customer purchase order or in any other order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
13.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity securities. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
13.3. Marketing and Promotional Rights. Customer grants to Fabrik the right to use Customer’s company name and logo in marketing and promotional materials, including earnings releases and calls, subject to Customer’s brand and trademark guidelines as provided to Fabrik from time to time.
13.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.5. Third-Party Beneficiaries. The parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement.
13.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.8. Headings. Headings are used in this Agreement and all associated agreements are solely for convenience and shall not be deemed to affect in any manner the meaning or intent of the applicable agreement or any provision there/hereof.
13.9. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.10. Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, pandemic, epidemic, quarantine restriction, and Internet disturbance) that was beyond the party’s reasonable control.
13.11. Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
EXHIBIT A
DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this End User SaaS Agreement and any applicable Order Form.
“Applicable Data Privacy Laws” means the data privacy and security laws of the relevant jurisdiction, including but not limited to the European Union’s General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
“Beta Services” means certain features, technologies, and services that are not generally available to customers, as updated from time to time.
“Customer,” “you” or “your” means the person accepting this Agreement, or, if applicable, the company or other legal entity for which Customer is accepting this Agreement.
“Customer Services Data” means electronic data and information submitted by or for Customer to the Services or collected and processed by or for Customer as a result of your use of the Services (e.g., username, vendor contact information, support requests, issue remediation).
“Documentation” means the documentation and Service feature descriptions, as updated from time to time, as provided by Fabrik (whether online or otherwise).
“Disruption Event” means either: (a) a User’s use of the Services which could disrupt: (i) the Services; (ii) other customers’ use of the Services; or (iii) Fabrik network or servers used to provide the Services; or (b) unauthorized third-party access to the Services.
“Generic Reports” means reports that may include Customer Services Data in an anonymous, generic, de-identified format aggregated with other data not constituting Customer Services Data solely and exclusively for analyzing customer needs, improving Fabrik products and services, or providing benchmark data of usage and configuration of applications to other customers.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
“Non-Fabrik Applications” means a web-based or offline software application that is provided by Customer or a third party and is not owned, operated, controlled, or otherwise provided by Fabrik (including any third-party integrations or partner products promoted by Fabrik), whether such application interoperates with the Services or is provided on a stand-alone basis.
“Non-Fabrik Material” means files, documents, or other materials of third parties made available by Fabrik via the Services but not otherwise owned or controlled by Fabrik.
“Order Form” means a purchase order, quote, online subscription, or other ordering document specifying the Services to be provided hereunder that is entered into between (a) Customer and (b) Fabrik or any of Fabrik’s Affiliates or Resellers, including any addenda and supplements thereto. For the avoidance of doubt, Customer’s subscription confirmation within the Services platform shall be considered an “Order Form” for purposes hereof.
“Personal Information” means information relating to an identified or identifiable natural person.
“Privacy Policy” means Fabrik’s Privacy Policy, as updated from time-to-time, located at: https://genaitrust.com/privacy.html or such other URL as Fabrik may provide from time to time.
“Purchased Services” means Services that Customer purchases under an Order Form, as distinguished from those provided pursuant to an unpaid trial.
“Reseller” means one of Fabrik’s preferred partner resellers through whom Customer purchases the Services.
“Services” means the products and services made available online or otherwise by Fabrik, including customer support services provided in connection with Fabrik’s SaaS offerings, which are specified in an Order Form. “Services” exclude Non-Fabrik Applications and any products, services or content related thereto.
“Subscription Term” means the period of time during which Users are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
“Suspend” or “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
“User” means an individual who is authorized by Customer to use one or more of the Services and to whom Customer (or Fabrik at your request) has supplied a user identification and password. Users may include, for example, your employees, consultants, contractors, and agents.
