Log in
Join waitlist

Terms of Service

SERVICES AGREEMENT

Version: November 20, 2023

This Services Agreement (“Agreement”) is a binding legal contract between Customer and RoadWay AI, Inc., a Delaware corporation (“Provider”), and governs Customer’s and its End Users’ access to and use of the Services. Provider and Customer may individually be referred to each as a “party” and collectively as the “parties”. This Agreement will become effective as of the date that Provider first makes Services available to Customer pursuant to an Order Form (the “Effective Date”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING THE SERVICES MADE AVAILABLE BY PROVIDER UNDER THIS AGREEMENT, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY (“ORGANIZATION”) THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER INDICATED ON THE ORDER FORM, WHETHER THAT IS YOU INDIVIDUALLY OR THE ORGANIZATION FOR WHICH YOU ACT (“CUSTOMER”, “YOU”, OR “YOUR”).

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES. If Customer does not agree to the terms of this Agreement, Provider is not willing to provide the Services or grant Customer or any of its End Users any right to access or use the Services. If you are accessing or using the Services on behalf of an Organization, then your Organization is legally and financially responsible for your access to and use of the Services as well as for the use of your and all other End User accounts affiliated with the Organization, including access or use by the Organization’s employees, contractors, and agents. For the avoidance of doubt, if you are accessing or using the Services on behalf of an Organization, the Organization will be considered the “Customer” under this Agreement.

THIS AGREEMENT EXPRESSLY INCORPORATES BY REFERENCE (I) ALL ORDER FORMS AS PROVIDED FOR IN SECTION 2.1 (ORDER FORMS) OF THIS AGREEMENT, (II) THE SERVICE LEVEL TERMS AS PROVIDED FOR IN SECTION 4 (SERVICE LEVELS) OF THIS AGREEMENT, AND (III) THE DPA AS PROVIDED FOR IN SECTION 5 (INFORMATION SECURITY) OF THIS AGREEMENT. ADDITIONALLY, ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CUSTOMER’S EXPRESS CONSENT (ON BEHALF OF ITSELF AND ITS END USERS) FOR PROVIDER TO USE CUSTOMER DATA FOR THE PURPOSES DESCRIBED IN SECTION 7.2 (USE OF ARTIFICIAL INTELLIGENCE) OF THIS AGREEMENT AND, IN PARTICULAR, CUSTOMER’S EXPRESS ACCEPTANCE OF THE OPENAI TERMS IN CONNECTION WITH SUCH USE, AS THEY ARE MADE AVAILABLE BY OPENAI ON ITS WEBSITE AT HTTPS://OPENAI.COM.

Capitalized terms used but not defined in the main body of this Agreement have the meaning as set forth in the Service Level Terms, the DPA, or other document referenced in this Agreement.

  1. Term. The initial term of this Agreement will begin on the Effective Date and, unless earlier terminated as provided for herein, will continue thereafter for a period of one (1) year or, if a different period is specified on the Order Form, then for such other period (“Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) year terms (or such other renewal term specified on the Order Form) (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term”. In any event, this Agreement will continue for so long as Provider permits Customer to access and use the Services.
  2. Services
  1. Order Forms. Pursuant to the terms of this Agreement, and from time to time during the Term, Provider will provide Customer access to such Services or other products or services in each case as specified in any ordering document or online sign-up or subscription page, regardless of form, agreed to between the parties referencing this Agreement (each, an “Order Form”). Each Order Form is incorporated into this Agreement by reference and will include a description of the specific Services or other product(s) or service(s) to be provided by Provider and the fees payable to Provider for such Services or other product, service, or related deliverables pursuant to such Order Form. The parties acknowledge and agree that unless and until an Order Form is executed by both parties, Provider is not required to provide access to any product or service hereunder (including Services) by virtue of this Agreement alone. The parties may enter into multiple Order Forms under this Agreement.
  2. Provision and Access. Subject to and conditioned on Customer’s and its End Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 18.9 (Assignment)) right to access and use Provider’s software-as-a-service offering that Provider makes available pursuant to this Agreement and an applicable Order Form (the “Services”) during the Term, solely for use by End Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business purposes. Provider will provide to Customer the necessary End User login credentials, if applicable, within a reasonable time following the Effective Date. The total number of End Users will not exceed the authorized number of End Users for which Customer has purchased access under this Agreement, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the fees payable hereunder. Additionally, subject to the other terms and conditions of this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 18.9 (Assignment)) license to use the then current documentation made generally available by Provider to its customers regarding the Services (the “Documentation”), during the Term, solely for Customer’s internal business purposes in support of Customer’s use of the Services and for no other purpose. For purposes of this Agreement, “End Users” means Customer’s employees, contractors, and representatives who are authorized to access the Services on Customer’s behalf.
  3. Evaluation Use. Provider may offer Customer access to the Services on an evaluation basis. To the extent any Services are designated by Provider in the Order Form or within the Services as an evaluation or pilot version or are provided to Customer specifically for evaluation purposes or use on a pilot basis (“Pilot Use”), then, unless otherwise approved in writing by Provider, Customer’s right to access and use the Services is limited solely for internal evaluation purposes in non-production use and in accordance with Provider’s terms of the evaluation offering under which Customer receives access to the Services, and expires (including the licenses granted to Customer pursuant to Section 2 (Services)) sixty (60) days from the Effective Date (or such other period as may be indicated within the Services or on the Order Form) (“Pilot Period”). If the Services are initially provided for Pilot Use, Customer may terminate this Agreement and all of its rights hereunder by providing Provider written notice thereof no less than ten (10) days prior to the end of the Pilot Period; otherwise, this Agreement will continue in full force and effect for the remainder of the Term. If Customer elects to terminate this Agreement pursuant to the foregoing, then, upon the expiration of the Pilot Period, Customer’s access to the Services and all of its rights hereunder will cease and Customer and all End Users must immediately discontinue all use of the Services and Documentation, and delete all Provider Confidential Information entirely from Customer Systems, and neither Customer nor any End User may access or use the Services again unless approved in writing by Provider. The Services may contain an automatic disabling mechanism that prevents access to and use of the Services after a certain period of time. DURING THE PILOT PERIOD, PROVIDER PROVIDES SUCH SERVICES TO CUSTOMER AND ITS END USERS “AS IS”, “WHERE IS”, AND “WITH ALL FAULTS”, AND PROVIDES NO WARRANTIES OF ANY KIND WITH RESPECT TO SUCH SERVICES, NOR DOES ANY REPRESENTATION, WARRANTY, SERVICE LEVEL, OR OTHER OBLIGATIONS OF PROVIDER WITH RESPECT TO SUCH SERVICES DESCRIBED HEREIN APPLY TO THE SERVICES PROVIDED FOR PILOT USE. If this Agreement is not terminated upon completion of the Pilot Period pursuant to the foregoing, this Agreement will remain in full force and effect in accordance with its terms and the Services will be provided for the remainder of the Term under the terms and subject to the conditions of this Agreement.
  4. Beta Services. From time to time, Provider may provide Customer with the option to participate in early access programs with Provider where Customer has access to alpha, beta, or pre-release services, products, features, and documentation offered by Provider (“Beta Services”). Notwithstanding anything to the contrary contained in this Agreement, Beta Services are not generally available and may contain bugs, errors, or defects. Beta Services are for evaluation purposes only and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Access to and use of Beta Services is only permitted for the period designated by Provider. PROVIDER PROVIDES BETA SERVICES TO CUSTOMER AND ITS END USERS “AS IS”, “WHERE IS”, AND “WITH ALL FAULTS”, AND PROVIDES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, NOR DOES ANY REPRESENTATION, WARRANTY, SERVICE LEVEL, OR OTHER OBLIGATIONS OF PROVIDER WITH RESPECT TO THE SERVICES DESCRIBED HEREIN APPLY TO BETA SERVICES. PROVIDER MAY DISCONTINUE BETA SERVICES AT ANY TIME IN ITS SOLE DISCRETION AND MAY NEVER MAKE THEM GENERALLY AVAILABLE.
  5. Implementation Services. Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, Provider will provide such initial configuration, training, and other basic implementation services as Provider determines are reasonably necessary to support and facilitate Customer’s initial onboarding to the Services (“Implementation Services”). Customer acknowledges that Implementation Services are a cooperative process, and Customer agrees to use all reasonable efforts to cooperate with and assist Provider as may be reasonably required to meet any agreed upon deadlines and other milestones for implementation. This cooperation includes at least working with Provider to schedule the Implementation Services and providing appropriate access to Customer Systems and Customer Data. Provider will not be liable for delays or failure to meet any deadlines or milestones when such delay or failure is due any delay or failure by Customer to provide such cooperation and assistance (either through action or omission).
  1. Restrictions. Customer and its End Users may only use the Services as described in this Agreement and in the Documentation. Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, directly or indirectly: (a) permit any third party to access or use the Services other than an End User; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (c) use the Services or any Provider Confidential Information to develop a competing product or service; (d) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; (e) permit direct or indirect access to or use of any Service in a manner that circumvents a contractual usage limit; or (f) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by Provider hereunder. Under no circumstances will Provider be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, hardware, or data that are not provided by Provider. All such use will be at Customer’s sole risk and liability. End User login credentials are for Customer’s designated End Users only and are assigned on an individual End User basis. Login credentials may not be shared among multiple individuals, and Customer will not, and will not allow any End User to, share login credentials in violation of these terms.
  2. Service Levels. During the Term, Provider will use its commercially reasonable efforts to make the Services Available in accordance with the applicable service levels (and subject to the other terms and conditions) set forth in Provider’s Service Level Terms (“Service Level Terms”) or, if different or additional service levels are agreed in an Order Form, then as set forth in the applicable Order Form (as applicable, “Service Levels”). If Provider fails to achieve Service Levels pursuant to the Service Level Terms or the applicable Order Form, as applicable, Provider will use commercially reasonable efforts to correct the interruption or deficiency as promptly as practicable. In the event Provider fails to achieve Service Level requirements in two (2) consecutive months during the Term, the occurrence of which is agreed by the parties to be a material failure justifying a remedy or remedies hereunder, Customer may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation, and will receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Customer’s sole and exclusive remedy and Provider’s sole and exclusive liability for failure to achieve the Service Level requirements.
  3. Information Security. Consistent with any law or regulation applicable to the Services and Provider’s then current practices and procedures, Provider will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data to the extent stored by the Services or otherwise within Provider’s custody and control. Provider will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data. Customer will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the Customer Systems. This Agreement incorporates Provider’s Data Processing Addendum (”DPA”) when Data Protection Laws apply to Customer’s use of the Services and Processing of Customer Personal Data.
  4. Service and System Control. Customer is solely responsible for the Customer's and each End User’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or an End User or through the use of third-party services (collectively, “Customer Systems”), required to access the Services. In addition to other third-party costs that may apply, Customer agrees to pay for all telecommunications and other costs, fees, and services that may be required for and dedicated to Customer’s and each End User’s access to the Services on or through the Customer Systems, or otherwise required to access the Services. Except as otherwise expressly provided in this Agreement, as between the parties: (a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Services; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services by any person by or through the Customer Systems or any other means controlled by Customer or any End User, including any (i) information, instructions, or materials provided by any of them to the Services or Provider, (ii) results obtained from any use of the Services, and (iii) conclusions, decisions, or actions based on such use.
  5. Third-Party Products and Integrations; Use of Artificial Intelligence
  1. In general. Provider may make available to Customer during the Term certain application programming interfaces (“API(s)”) or other software or data integrations between the Services and certain third-party software, products, or services that enable the Services or provide additional features or functionality with the Services (each, a “Third-Party Integration”). Subject to the terms of this Agreement with respect to Customer’s access to and use of the Services and Customer’s compliance with any third-party terms and conditions associated with the Third-Party Integration (“Third-Party Terms”), Customer may enable such Third-Party Integrations. All Third-Party Integrations (including such software and services and associated features and functionality) are provided solely by the respective third-party service provider and subject to and governed by all corresponding Third-Party Terms. By enabling a Third-Party Integration between the Services and the applicable third-party software, product, or service, Customer is expressly instructing (and hereby authorizes) Provider to share all Customer Data and/or other Services data and information with the applicable third-party service provider(s) as necessary to facilitate the Third-Party Integration. Notwithstanding anything else to the contrary in this Agreement: (a) Provider makes no representations or warranties regarding the suitability of any such Third-Party Integrations for Customer’s intended requirements or purposes, including for use with the Services or Customer’s systems; (b) Provider makes no representations or warranties regarding the integrity of data transmitted, transferred, stored, obtained, or received through any such Third-Party Integrations; (c) Provider is not obligated to maintain or support any such Third-Party Integrations or to provide Customer with updates, fixes, or services related thereto; (d) Provider makes no representations or warranties regarding the availability, functionality, or any changes to the features or specifications of any such Third-Party Integrations; and (e) Customer assumes all risk arising from the use of any such Third-Party Integrations, including the risk of damage to Customer Systems, the corruption or loss of data, and compliance with all applicable law (including all laws and regulations related to privacy and data protection).
  2. Use of Artificial Intelligence. Provider must use Customer Data in certain ways to enable the processing of Customer Data within the Services and to provide Customer certain features or functionality with the Services, including passing Customer Data into OpenAI, L.L.C.’s (“OpenAI”) developed artificial intelligence (“AI”) model(s) via the OpenAI API platform. Provider’s AI service within the Services embeds Customer Data (in particular, Customer’s data warehouse schema) in the Services and inputs “prompts” to the OpenAI API to send data output from Customer’s data queries to the OpenAI API to identify and deliver insights for Customer and its End Users. OpenAI processes and stores the data it analyzes with its model(s) in accordance with the OpenAI terms and conditions and privacy policy regarding usage of the OpenAI API, as they may be found from time to time on OpenAI’s website available at https://openai.com (“OpenAI Terms”). CUSTOMER’S AND ITS END USERS’ USE OF THE SERVICES CONSTITUTES CUSTOMER’S AND EACH END USER’S EXPRESS (I) CONSENT FOR PROVIDER AND OPENAI TO USE THE APPLICABLE CUSTOMER DATA FOR SUCH PURPOSES AND (II) ACCEPTANCE OF THE OPENAI TERMS. As further described in the OpenAI Terms, data submitted through the OpenAI API in connection with the Services provided under this Agreement is not used to train OpenAI models or improve OpenAI’s service offering.
  1. Proprietary Rights. Customer acknowledges and agrees that: (a) all Services and Documentation, all products and services provided for Pilot Use, Beta Services, and Implementation Services (and the results thereof), and all other intellectual property of Provider or its vendors/licensors (collectively, “Provider IP”) are protected by intellectual property rights, as applicable, of Provider and its vendors/licensors and that Customer has no right to transfer or reproduce the Provider IP or to prepare any derivative works with respect to, or disclose Confidential Information pertaining to, any Provider IP or any part thereof, regardless of whether Provider IP is provided as Services, for Pilot Use, as Beta Services, or comprising Implementation Services (or embodying any results thereof); and (b) Provider (or its vendors/licensors, as applicable) owns all right, title, and interest in and to the Provider IP, including any changes or modifications made to the Services, Documentation, or other Provider IP resulting from Implementation Services or otherwise performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services and other Provider IP. Under no circumstances will Customer be deemed to receive title to any portion of Provider IP or any related intellectual property or other materials of Provider or its vendors/licensors, title to which Services and other Provider IP at all times will vest exclusively in Provider. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve all Provider IP from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by Provider to Customer in connection with this Agreement to contest the validity of any intellectual property rights of Provider or its vendors/licensors. Any such use of Provider’s Confidential Information will constitute a material, non-curable breach of this Agreement. Provider reserves all rights not expressly granted in this Agreement. With respect to Third-Party Integrations, the applicable third-party providers own all right, title, and interest in and to, including all intellectual property rights in and to, the third-party software, products, or services comprising the Third-Party Integrations.
  2. Customer Data; Usage Data. Customer hereby grants Provider a non-exclusive, world-wide, royalty-free license to use (i) the documents, information, graphics, data, content, and other materials that Customer or its End Users input into the Services, and (ii) Customer-specific data that is derived from Customer’s use of the Services as long as such derivative work is not a component of the Services itself, furnished by Provider under this Agreement, or Usage Data ((i) and (ii), collectively, “Customer Data”). Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Provider for use as contemplated under this Agreement. Except for the licenses granted in this Section 9 (Customer Data; Usage Data), nothing contained in this Agreement will be construed as granting Provider any right, title, or interest in the Customer Data. Customer hereby grants Provider the right to collect, analyze, and otherwise process data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, including data and information related to Customer’s and its End Users’ access to and use of the various features and functionality of the Services and analytics and statistical data derived therefrom (including Customer Data table schemas and database structures used in the Services) (also including all Services Data as described in the DPA, collectively, “Usage Data”), and Customer hereby grants Provider a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to (i) use, copy, distribute, and otherwise exploit such Usage Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Provider offerings, and (ii) disclose such Usage Data solely in aggregate or other de-identified form in connection with its business. The Usage Data to the extent not comprising Customer Personal Data will not be considered Customer’s Confidential Information.
  3. Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Provider with respect to its products and services, including the Services. Feedback is voluntary. Provider may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants Provider an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Provider’s business, including the enhancement of the Services.
  4. Fees
  1. In general. Customer will pay Provider the fees associated with the Services pursuant to the applicable Order Form and this Agreement. Except as provided in Section 4 (Service Levels), Section 12.2 (Provider Warranty), and Section 13 (Provider Indemnity), all fees are non-refundable. Customer will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount, and (ii) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, Provider may, in its discretion, suspend the Services until the invoice is paid in full. Following the initial year of the Term, on sixty (60) days prior notice to Customer, Provider may, at its discretion, adjust any or all fees due hereunder. Customer may terminate this Agreement on written notice to Provider within thirty (30) days of its receipt of notice from Provider to adjust the fees; provided, however, that if Customer fails to object to such adjustment in writing within the foregoing thirty (30) days then Customer will be deemed to have agreed to the adjustment.
  2. Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Provider harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Provider.
  1. Warranties
  1. Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the licenses set forth in Section 9 (Customer Data; Usage Data) and Section 10 (Feedback); (b) any Customer Data provided by Customer to Provider for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable law (including applicable laws related to spamming, privacy, and consumer protection); and (c) its use of the Services will be in compliance with all applicable law.
  2. Provider Warranty. During the Term, Provider represents and warrants that: (a) the Services will substantially comply with the Documentation; (b) it will use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (c) it will comply with applicable law in performing this Agreement. In the event of a breach of the warranty in Section 12.2(a), Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service again. In the event Provider is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
  3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 12.2 (PROVIDER WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. PROVIDER AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF PROVIDER’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. PROVIDER WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
  1. Provider Indemnity. Provider will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Provider is contingent upon Customer promptly notifying Provider in writing of such claim, permitting Provider sole authority to control the defense or settlement of such claim and providing Provider reasonable assistance (at Provider’s sole expense) in connection therewith. If a claim of infringement under this Section 13 (Provider Indemnity) occurs, or if Provider determines a claim is likely to occur, Provider will have the right, in its sole discretion, to either: (a) procure for Customer the right or license to continue to use the Services free of the infringement claim; or (b) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Provider, Provider may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, Provider will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Provider; (ii) modification or alteration of the Services by anyone other than Provider; (iii) use of Services in excess of the rights granted in this Agreement; or (iv) any specifications or other intellectual property provided by Customer, including the Customer Data (collectively, the “Excluded Claims”). The provisions of this Section 13 (Provider Indemnity) state the sole and exclusive obligations and liability of Provider and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
  2. Customer Indemnity. Customer will defend and indemnify Provider and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Provider as a result of any claim by a third party arising from: (a) Customer’s use of the Services in breach of this Agreement; or (b) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Provider promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
  3. Confidentiality
  1. Definition of Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available certain Confidential Information to the other party (as the “Receiving Party”). Subject to Section 15.2 (Exclusions) and Section 15.4 (Compelled Disclosures), “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, whether or not marked, designated, or otherwise identified as “confidential” (or words of similar import), including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, the Services and Documentation are Provider’s Confidential Information, and the Customer Data is Customer’s Confidential Information.
  2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
  3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 15 (Confidentiality) and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
  4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and assist the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
  5. Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
  6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 15 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
  1. Limitation of Liability and Damages. NEITHER PROVIDER NOR ITS VENDORS OR LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF PROVIDER AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING AND WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS AND LIMITATIONS DESCRIBED IN SECTION 2.3 (EVALUATION USE) AND SECTION 2.4 (BETA SERVICES), PROVIDER WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO (I) SERVICES DURING THE PILOT PERIOD OR OTHERWISE ARISING FROM PILOT USE OR (II) BETA SERVICES, IN EITHER CASE, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE PROVIDER’S AGGREGATE LIABILITY FOR ALL DAMAGES OF EVERY KIND AND TYPE WITH RESPECT TO SUCH SERVICES OR BETA SERVICES, AS APPLICABLE, WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER SPECIFICALLY FOR THE PILOT USE OR FOR THE BETA SERVICES, AS APPLICABLE.
  2. Termination
  1. Termination. This Agreement will terminate: (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
  2. Suspension of Services. Notwithstanding any other provision of this Agreement, Provider may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Provider from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. Provider will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Provider will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section 17.2 (Suspension of Services) will not be construed as imposing any obligation or duty on Provider to monitor use of the Services.
  3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all End User’s access to and use of the Services will cease as of the effective date of termination; (b) Customer will pay to Provider all undisputed sums due to Provider for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) at Provider’s standard time and materials rates, Provider will reasonably cooperate with Customer in transitioning the Customer Data back to Customer.
  1. General Provisions
  1. Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by Provider’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Provider may be, in whole or in part, exercised or fulfilled by the foregoing entities. Provider will ensure such entities comply with all relevant terms of this Agreement.
  2. Publicity. With the prior written consent of Customer, Provider may identify Customer as a customer in its customer listings, websites, and other promotional materials, and issue a press release regarding the parties’ new relationship under this Agreement.
  3. USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. Provider anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.
  4. Force Majeure. Except for the payment of money as described in Section 11 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
  5. Entire Agreement. This Agreement, together with the Service Level Terms and, if applicable, the DPA, as well as all Order Forms, sets forth the entire agreement between the parties with regard to the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as specifically provided herein. This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted a purchase order or such terms and conditions. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend any part of this Agreement.
  6. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the laws of the State of California, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement will be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in Marin County, California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section 18.6 (Governing Law, Venue, and Limitation of Actions). Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section 18.6 (Governing Law, Venue, and Limitation of Actions). No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
  7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
  8. Relationship of the Parties. The parties agree that Provider will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Provider who perform duties related to this Agreement will remain under the supervision, management, and control of Provider.
  9. Assignment. Customer may not assign this Agreement without the prior written consent of Provider.
  10. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
  11. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
  12. Survival. The following provisions will survive termination or expiration of this Agreement: 7 (Proprietary Rights), 12.3 (Disclaimer of Warranties), 13 (Provider Indemnity) (for claims accruing prior to termination), 14 (Customer Indemnity) (for claims accruing prior to termination), 15 (Confidentiality), 16 (Limitation of Liability and Damages), 17 (Termination), and 18 (General Provisions).
  13. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section 18.13 (Notices). Notwithstanding the foregoing, Provider may provide notices to Customer regarding day-to-day communications pertaining to the provision of the Services, including communications regarding Section 4 (Service Levels) and Section 11 (Fees), via email to Customer’s email address set forth on the Order Form or used by Customer in any communication to Provider regarding the Services. Additionally, notwithstanding any of the foregoing, notices of updates to Services subscription or license terms, terms of use, privacy terms, or other terms related to Provider’s website and any product or service accessed via Provider’s website may be delivered by Provider posting such updates on its website or through in-product or in-service messages.
  14. Electronic Execution. This Agreement will be accepted in electronic form (e.g., by an electronic or digital signature or other electronic means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.
  15. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
  16. Interpretation. For purposes of this Agreement, the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; and words denoting the singular have a comparable meaning when used in the plural, and vice-versa. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

Modifications to this Agreement. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER HAS THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT FROM TIME TO TIME, AND THAT MODIFIED TERMS BECOME EFFECTIVE ON POSTING, SUBJECT TO CUSTOMER’S ACCEPTANCE OF THE MODIFIED TERMS AS PROVIDED FOR IN THIS SECTION 19 (MODIFICATIONS TO THIS AGREEMENT), AND IN WHICH CASE THE NEW AGREEMENT WILL SUPERSEDE PRIOR VERSIONS. CUSTOMER WILL BE NOTIFIED OF MODIFICATIONS THROUGH NOTIFICATIONS OR POSTS ON HTTPS://WWW.ROADWAYAI.COM OR DIRECT EMAIL COMMUNICATION FROM PROVIDER. CUSTOMER IS RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. CUSTOMER’S CLICKING A BOX INDICATING ACCEPTANCE OF THE MODIFICATIONS (OR UPDATED VERSION OF THIS AGREEMENT), EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THE UPDATED VERSION OF THIS AGREEMENT, OR BY CONTINUED USE OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE MODIFICATIONS, WILL BE DEEMED CUSTOMER’S ACCEPTANCE OF THE MODIFIED TERMS. No amendment, modification, supplement, or other purported alteration of this Agreement will be binding on Provider unless it is in writing, identified as an amendment, modification, supplement, or other alteration to this Agreement, and signed by an authorized representative of Provider.

SERVICE LEVEL TERMS

These Service Level Terms (“Service Level Terms”) form part of the Services Agreement between Roadway AI, Inc. (“Provider”) and Customer (the “Agreement”) under which Provider provides the Services to Customer. Capitalized terms used but not defined herein shall have the meaning as set forth in the Agreement.

  1. Availability. The hosted elements of the Services will be available for remote access 99.9% of the time each calendar month of the Term, excluding Excused Outages (“Availability”). Downtime as a result of any causes beyond the reasonable control of Provider or that are not reasonably foreseeable by Provider, including by any of the events noted below, are excluded from the Availability calculations (collectively, “Excused Outages”):
  1. Customer Systems or other Customer environment issues affecting connectivity or interfering with the Services, including Customer’s telecommunications connection or any other Customer System, Customer’s firewall software, hardware, or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
  2. any third-party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
  3. force majeure events, including fire, flood, earthquake, elements of nature or acts of God; third-party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of Provider;
  4. issues related to third-party domain name system (DNS) errors or failures;
  5. scheduled maintenance of the Services, conducted either (i) on a regular basis between 6:00 PM and 6:00 AM Pacific Time; or (ii) at other times outside such regularly scheduled windows in which case Provider will give Customer a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and
  6. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
  1. Data Limits. The Services have a maximum data usage limit, which is set forth in the Order Form or, solely to the extent not inconsistent with the Order Form, as set forth in the Documentation. Customer must not use the Services in a manner that exceeds the maximum data usage limit. Customer will be responsible for charges for any data usage above the data usage limit, as set out in the Order Form, paid in arrears.
  2. Support and Maintenance. During the Term, Provider will provide Customer with reasonable technical support in the manner that Provider generally provides its customers during Provider’s business hours, and Provider will use commercially reasonable efforts to correct reproducible failures of the Services to perform in substantial accordance with their then current Documentation. Provider will make available to Customer the Services updates and bug fixes that Provider in its sole discretion makes generally available to its other similarly situated customers at no charge. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which Provider imposes an additional charge to its customers. Such new or different functionality may be purchased by Customer, in its discretion, at Provider’s then current pricing.

‍

‍

Company
CareersAbout usTwitter
Legal
Terms of servicePrivacy policyCookie policy
© 2024 Roadway AI, Inc. All rights reserved