Last modified: May 13, 2024
DeepHow Corp. (“DeepHow”) provides an AI powered video-centric end-to-end training platform (the “DeepHow Solution”).These Terms and Conditions (the “Terms and Conditions”) govern Customer’s access to and use of the DeepHow Solution, all related services available via the DeepHow Solution or provided by DeepHow personnel, and any documentation and other materials provided by DeepHow (collectively, the “Services”).
Customer and DeepHow will also enter into service orders that describe the fees, any additional Services to be provided by DeepHow, and any other terms and conditions agreed to between Customer and DeepHow (the “Order Form”). Collectively, the Order Form(s) and the Customer’s acceptance of these Terms and Conditions, either separately or as incorporated by reference in any Order Form(s), shall be deemed the “Agreement” between the Customer and DeepHow.
“Customer” means any customer who enters into these Terms and Conditions and executes an Order Form with DeepHow and accepts these Terms and Conditions either separately or as incorporated by reference in any Order Form(s). In the event of a conflict between any provisions of an Order Form and these Terms and Conditions, the Order Form shall prevail. DeepHow and Customer are each referred to herein individually asa “Party” and together as the “Parties”.
1.1 Term
The Agreement will be in effect from the period stated in the OrderForm (“Effective Date”) and will remain in effect for the duration of the initial subscription term and any subsequent renewal terms (if applicable). The initial subscription term specified on the Order Form, and any subsequent renewal terms (if applicable), shall be referred to herein as the “Term”.
1.2 Termination
Either Party may terminate this Agreement (a) if the other Party materially breaches any term in this Agreement and the material breach is not cured within thirty (30) days of the date the non-breaching Party provides written notice to the breaching Party identifying the breach; or (b) upon the happening of any of the following or any other similar event: (i) insolvency of the other Party; (ii) filing of any petition by or against the other Party under any bankruptcy, reorganization or receivership law; (iii) execution of an assignment for the benefit of creditors; or (iv) appointment of any trustee or receiver of the other Party's business or assets or any part thereof, unless such petition, assignment or appointment is withdrawn or nullified within fifteen (15) days of such event. Sections 2 through 10 (inclusive) of this Agreement will survive the expiration or termination of this Agreement.
1.3 Effect of Termination
Upon termination or expiration of this Agreement for any reason, Customer will cease all use of the DeepHow Solution and Service (unless permitted under a separate agreement executed by both Parties).
2.1 Rights to Use
Subject to these Terms and Conditions and payment of the fees set forth in the Order Forms, DeepHow grants to Customer, and Customer’s employees who are authorized by Customer to access and use the DeepHow Solution and Services (“Authorized User(s)”), a limited, non-exclusive, non-transferable, non-sub licensable, revocable right and license to access and use the DeepHow Solution and Services during the Term specified on the Order Form, in accordance with the terms of the Agreement and any other applicable documentation provided by DeepHow to Customer.
2.2 Limitations
Customer will not, and will not permit any third party to: (i) use the DeepHow Solution and Services except as expressly permitted in these Terms and Conditions; (ii) decompile, disassemble, or reverse engineer the DeepHow Solution and Services (unless this restriction is not permitted under applicable law); (iii) modify or create any derivative work of any part of the DeepHow Solution and Services; (iv) permit any third parties to use the DeepHow Solution and Services; (v) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the DeepHow Solution and Services, or use the DeepHow Solution and Services for time-sharing or service bureau use; (vi) remove any proprietary notices contained in the DeepHow Solution and Services; or (vii) use the DeepHow Solution and Services or any documentation or Customer’s access to any of the foregoing to design, build, market or sell any similar, competitive or substitute service.
2.3 Customer Data
In connection with theDeepHow Solution and Services, DeepHow will have access to customer data and other information Customer’s employees, agents, customers, or other contacts provide through the DeepHow Solution (collectively, “Customer Data”). Customer owns all Customer Data and retains all right, title, and interest, including all intellectual property rights, in and to the Customer Data, and any derivative works thereof. Customer hereby authorizes DeepHow to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, modify, and make derivative works of Customer Data to provide, maintain, and improve the DeepHow Solution and Services for Customer, and as requested by Customer, to provide customer support and customer success services to Customer. Customer Data will not be used in implementation of any improvements to the DeepHow Solution and Services, except DeepHow may use Customer Data in anonymous, de-identified form, to improve DeepHow’s translation and recommender system, solely for the Customer, while this Agreement is in effect. For the avoidance of doubt, DeepHow’s AI technology does not reside in the public domain, and DeepHow will not use Customer Data for commercial or marketing purposes. At Customer’s written request, and upon termination or expiration of this Agreement, DeepHow will delete all Customer Data. Except with respect to DeepHow’s third party service providers, which at the time of this Agreement include Amazon Web Services, Google Cloud Platform, and Microsoft Azure (collectively, the “Third Party Service Provider(s)”), DeepHow will not disclose Customer Data to other customers or third parties. As a condition precedent to granting a Third Party Service Provider access to Customer Data, DeepHow shall require such Third Party Service Provider to agree in writing to be bound by confidentiality terms no less stringent than the confidentiality terms of this this Agreement.
2.4 DeepHow Property
DeepHow does and will own all right, title and interest in and to the Services and the DeepHow Solution, technology, and other materials, and any changes, corrections, improvements, bug fixes, enhancements, updates and other modifications and derivative works thereof and thereto, made while providing the Services and DeepHow Solution, and all intellectual property rights therein and thereto (collectively, the “DeepHow Property”), and as between the Parties all such rights will solely and exclusively vest in and be assigned to DeepHow. Nothing in this Agreement will confer on Customer any right of ownership or interest in the DeepHow Property, whether by implication, estoppel or otherwise.
All fees related to Customer’s use of the Services and access to the DeepHow Solution will be set forth in the Order Form between Customer and DeepHow. DeepHow will invoice Customer at the start of the initial subscription term and at the start of any subsequent renewal terms (if applicable). Customer will pay DeepHow invoices in accordance with the payment term timeline set forth in the Order Form. Any overdue amounts will accrue interest at the rate of 1% per month. Customer shall be solely responsible for all sales and use taxes relating to this Agreement and its use of the DeepHow Solution. Upon commencement of any renewal term (if applicable), DeepHow reserves the right to increase any and all fees, as agreed upon by mutual written agreement of the Parties.
Each Party represents and warrants that: (a) it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) its performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreements of such Party or any judgment, order, or decree by which such Party is bound. Customer represents and warrants that it has obtained and will obtain all necessary rights, consents, and licenses for the use of all Customer Data as contemplated by this Agreement. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, each Party expressly disclaims any and all warranties of any kind or nature, whether express or implied, including the implied warranties of merchantability, non-infringement of proprietary rights and fitness for a particular purpose AND WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. THE SERVICES AND DEEPHOW SOLUTION ARE PROVIDED ONAN “AS IS” AND “WHERE AVAILABLE” BASIS.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, IN DIRECTOR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER FORM OF ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CUSTOMER TO DEEPHOW UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
“ConfidentialInformation” means information disclosed by one Party (the “discloser”) to the other Party (the “recipient”) that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. For the avoidance of doubt, the DeepHow Property is DeepHow’s Confidential Information, and Customer Data is Customer’s Confidential Information. Confidential Information excludes any information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was rightfully obtained by recipient from a third party. The recipient agrees not to disclose the discloser’s Confidential Information except to its affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and to fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing Party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information. Upon request of a Party or upon termination or expiration of this Agreement, each Party will promptly deliver to the other Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) of such other Party that are in its possession or control.
7.1 Indemnification by DeepHow
DeepHow shall defend, indemnify and hold harmless Customer and its parents, subsidiaries, affiliates, and their respective members, directors, officers, employees, stockholders and agents against any and all third party claims, demands, losses, liabilities, damages, expenses (including reasonable attorneys’ fees) and causes of action arising out of any claim in the event that the use of the DeepHow Solution by Customer infringes or violates any U.S. patent in existence as of the Effective Date, U.S. copyright or trademark rights; provided that DeepHow shall have no obligation under this Section to the extent that any claim results from (i) any alteration or modification of the DeepHow Solution not provided or authorized by DeepHow; (ii) use of the DeepHow Solution in a way not intended by DeepHow, if such infringement or violation would not have occurred but for such alteration, modification or unintended or unauthorized use of the DeepHow Solution; (iii) use of the DeepHow Solution in combination with other products or services where the claim is based on such combination, or where there would be no claim but for such combination; or (iv) such claim arises from hardware (including, without limitation, thermostats), software or services provided by a party other than DeepHow. Should the DeepHow Solution become, or in DeepHow’s opinion be likely to become, the subject of a claim for which DeepHow is required to indemnify pursuant to this Section, DeepHow may, at its discretion, (1) obtain for Customer, at no additional cost to Customer, the right to continue using the DeepHow Solution under this Agreement;(2) modify or replace the DeepHow Solution or part of the DeepHow Solution, at no additional cost to Customer, to avoid such claim, or (3) if DeepHow determines that neither (1) or (2) is commercially practicable, terminate the license to the DeepHow Solution and refund any prepaid fees paid by Customer for the DeepHow Solution. This Section 7.1 states DEEPHOW’S entire liability and Customer’s exclusive remedy for ANY CLAIMED, POTENTIAL OR ACTUAL infringement OR VIOLATION.
7.2 Indemnification by Customer
Customer agrees to defend, indemnify and hold DeepHow and its third party suppliers, DeepHow’s and their parents, subsidiaries, affiliates, and their respective members, directors, officers, employees, stockholders and agents harmless, against any third party losses, expenses, costs or damages (including DeepHow’s reasonable attorneys' fees, expert fees' and other costs of litigation) arising from, incurred as a result of, or in any manner related to (1) Customer’s use or misuse of the DeepHow Solution, (2) Customer’s breach of this Agreement, (3) Customer’s unauthorized or unlawful use of the DeepHow Solution, (4) the unauthorized or unlawful use of the DeepHow Solution by any other person using Customer’s credentials, (5) any infringement of any third party rights arising from or related to Customer’s provision of the DeepHow Solution to another user; (6) any acts or omissions arising from customer information provided by Customer or its agents; or (7) any Customer Data, content or other materials provided by Customer, Customer’s customers or a Customer through or in connection with the DeepHow Solution.
The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party will hold itself out as an agent of the other Party. Not withstanding anything to the contrary herein, this Agreement will not be construed to create or imply any partnership, agency, joint venture, or formal business entity of any kind.
Neither Party may assign this Agreement without the prior written consent of the other Party and any attempt to do so will be void, except that either Party without the other Party’s consent may assign this Agreement to its affiliates or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities or assets of such Party.
Any notice or consent under this Agreement will be in writing to the address specified on the Order Form. No provision of this Agreement will be waived by any act, omission or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving that provision and signed by a duly authorized officer of the waiving Party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. In this Agreement, “including” means “including without limitation” (and similar terms will be construed without limitation), and headings are for convenience only and will not affect interpretation. DeepHow will not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of DeepHow. This Agreement will be deemed to have been made in and will be construed pursuant to the laws of the State of Delaware and the United States without regard to conflicts of laws provisions. Any suit or proceeding arising out of or relating to this Agreement will be commenced in federal or state courts in Delaware, and each Party irrevocably submits to the jurisdiction and venue of those courts. Any amendments will be effective only if made in writing and signed by a representative of the respective Parties. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be signed in two counterparts, each of which will be deemed an original and which will together constitute one Agreement. Signatures sent by electronic means (facsimile, scanned and sent via e-mail, or signed by electronic signature service where legally permitted) will be deemed original signatures.
