Product Terms

The San Francisco AI Factory Inc.

Product Terms

These Products Terms (“Product Terms”) and the applicable Order together form the Agreement between The San Francisco AI Factory Inc. (“Factory”) and Customer. Factory and Customer are each a “Party” and, collectively, the “Parties.” Capitalized terms used but not defined in these Product Terms will have the meanings set forth in the Order. Acceptance of the Agreement is a condition to accessing and using the Factory Technology or any part thereof. The Parties hereto agree as follows:

1. Factory Platform and Professional Services

1.1. Customer and Ordering. Customer will enter into one or more Orders to purchase Services. An “Order” means any of (a) a signed order form between Customer and Factory referencing these Product Terms, or (b) the contents of Customer’s checkout page on Factory’s website along with any confirmatory emails generated by Factory in connection with such Customer purchase. “Customer” means the legal entity executing the Order.

1.2. Services. Customer will purchase the Services pursuant to the Order. Subject to the terms and conditions of the Agreement, Factory will (a) provide to Customer Factory’s software-as-a-service AI-powered platform (the “Factory Platform”), and (b) provide any Professional Services or other services identified in the Order ((a) and (b), collectively, the “Services”).

1.3. Users. Only Customer employees or contractors of Customer acting in such capacity (“Users”), using the mechanisms designated by Factory (“Log-in Credentials”), may access and use the Factory Platform. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ acts and omissions in connection with the Agreement, including all actions taken through Users’ Log-in Credentials (excluding misuse of the Log-in Credentials caused by Factory’s breach of the Agreement), as if such acts and omissions were Customer’s own. Customer will promptly notify Factory if it becomes aware of any compromise of any Log-in Credentials.

1.4. Factory Software. If Factory delivers software to Customer under the Agreement, then during the Term and subject to the terms of the Agreement, Factory hereby grants Customer a non-exclusive and non-sublicensable license to install and use on Customer Systems the software applications provided by Factory used to facilitate access and use of the Factory Platform (collectively, “Factory Software”; and, together with Factory Platform, and other technology provided by or on behalf of Factory “Factory Technology”). Customer and its Users are responsible for installing all updates, modifications, or bug fixes to the Factory Software that Factory provides or makes available.

1.5. Restrictions. Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Factory Technology to a third party (other than Users as permitted herein); (b) use the Factory Technology on behalf of, or to provide any product or service to, third parties; (c) access or use the Factory Technology to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public application programming interfaces to the Factory Technology, except to the extent expressly permitted by Laws (and then only with prior notice to Factory); (e) modify or create derivative works of the Factory Technology or copy any element of the Factory Technology (other than authorized copies of the Factory Software); (f) remove or obscure any proprietary notices in the Factory Technology; (g) publish benchmarks or performance information about the Factory Technology; (h) interfere with the operation of the Factory Technology, circumvent any access restrictions, or conduct any security or vulnerability test of the Factory Technology; (i) transmit any viruses or other harmful materials to the Factory Technology; (j) take any action that risks harm to others or to the security, availability, or integrity of the Factory Technology; or (k) access or use the Factory Technology in a manner that (i) violates any applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy or data transfer, international communications, or export of data (collectively, “Laws”) or (ii) is inconsistent with the limitations set forth in the Order (if any) and the then-current version of Factory’s usage guidelines and standard technical documentation for the Services that Factory makes generally available to its customers, including at https://docs.factory.ai/welcome (collectively, “Documentation”).

1.6. Professional Services.

(a) Generally. From time to time, Factory may agree to provide implementation, integration, training, consulting, development or other services (“Professional Services”) pursuant to the Order if it describes such Professional Services. All Professional Services will be provided in accordance with the provisions of the Agreement.

(b) Access to Systems. In connection with Professional Services, Customer may be required to (i) provide access to the networks, databases, systems, and other computing services on which Factory Software may be installed or with which the Factory Technology is integrated, including any Third-Party Platforms (collectively, “Customer Systems”); and (ii) provide or make accessible to Factory, Customer’s code, documentation and other materials or assets, including with respect to Customer’s products and services (collectively “Customer Product Materials”). In connection with the provision of Professional Services, Factory may modify and make improvements to Customer Product Materials (the “Improved Product Materials”). Customer understands and acknowledges that failure to provide requisite access to Customer Systems or Customer Product Materials may result in Factory’s inability to provide Professional Services, and Factory is excused for any such failure. Factory will access and use the Customer Product Materials only for purposes of performing under the Agreement and in accordance with Customer’s reasonable instructions and policies of use. In providing the Professional Services, Factory will utilize qualified and appropriately trained personnel.

2. Third-Party Platforms. The Factory Technology may support integration with third-party platforms or services or products not provided by Factory (“Third-Party Platforms”), including Third-Party Platforms which the Factory Platform accesses at Customer’s direction using Customer’s credentials or keys. Access to and use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not the Agreement. Factory does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Factory Technology or how the Third-Party Platforms or their providers collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (“Process”) Customer Data. By enabling a Third-Party Platform to interact with the Factory Technology, Customer authorizes Factory to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf and to take actions under Customer’s account for Third-Party Platforms. To the extent an integration with a Third-Party Platform requires that Factory use Customer’s access credentials or keys for such Third-Party Platform, Customer: (a) agrees to provide such credentials and keys, (b) represents and warrants that Customer has all necessary rights to provide such credentials and keys and that such use by Factory does not breach any agreement between Customer and the Third-Party Platform, and (c) authorizes Factory to use such credentials and keys on Customer’s behalf in connection with the provision of the Factory Technology. Customer acknowledges and agrees that certain Third-Party Platforms may block or prevent the Factory Technology from accessing the Third-Party Platform and that Factory makes no representations or warranties with respect to the continued availability to access Third-Party Platforms.

3. Support. During the Term, Factory will use commercially reasonable efforts to provide the Factory Technology in a manner that minimizes errors and interruptions in accessing the Factory Technology. During the Term, Factory will provide technical support to Users for issues and questions arising from the operation of the Factory Technology in accordance with Factory’s then-current support policy (“Support”).

4. Data and Deliverables

4.1. Use of Customer Data. Customer hereby grants Factory a non-exclusive, worldwide, sublicensable right to use, copy, store, transmit, transfer, modify, create derivative works from, and otherwise Process data, materials, and information including Customer Product Materials that Customer (including its Users) inputs into or otherwise provides or makes available to Factory through the Factory Technology or otherwise in connection with the Services (including data transmitted to Factory by the Factory Platform or accessed through a Third-Party Platform) (collectively, “Customer Data”) to: (a) provide the Factory Technology to Customer; and (b) Process and generate artificial intelligence outputs through the Factory Platform (“Outputs”). For the avoidance of doubt, in no event shall Factory use any Customer Data to develop or train AI models without Customer’s prior written consent.

4.2. Data Processing Agreement. The terms of the Data Processing Agreement currently available at https://factory.ai/data-processing-agreement (“DPA”) are incorporated herein by reference.

4.3. Ownership of Outputs and Improved Product Materials. To the extent that the generation of Outputs by Customer using the Factory Platform or Factory’s creation of Improved Product Materials results in the generation of new intellectual property rights, Factory hereby assigns to Customer title to such intellectual property rights. For clarity, and without limitation, the foregoing assignment does not include any intellectual property rights in or to Factory Technology, improvements or derivatives thereof, or intellectual property rights which Factory came to own other than as a result of such generation of Outputs or creation of Improved Product Materials.

4.4. Feedback and Usage Data. To the extent Customer provides Factory with feedback (including suggestions and comments for enhancements or functionality) regarding the Factory Technology, or Factory’s products, services, or other technology (collectively, “Feedback”), Factory has the full and unrestricted right to use and exploit the Feedback or to incorporate Feedback into any products, services, technology, or other materials. Factory may collect and use data and information regarding Customer’s and its Users’ access to and use of the Services, including data about feature usage, session activity, performance metrics, error logs, configurations, and interactions with the Factory Technology (collectively, “Usage Data”). Factory has the right to use Usage Data for any lawful business purpose, including to operate, maintain, improve, or enhance the Factory Technology and Services, to develop new products and services, to generate aggregated or de-identified analytics and benchmarking data, monitor usage and perform billing, and to fulfill its obligations under the Agreement. Usage Data does not include Customer Data. Factory retains all right, title, and interest in and to Usage Data.

4.5. Reservation of Rights. Neither Party grants the other any rights or licenses not expressly set out in the Agreement. Without limiting the foregoing, except for the limited licenses granted in the Agreement, (a) Customer retains all of its rights in and to the Customer Data and (b) Factory and its licensors retain all of their rights in and to the Factory Technology, Services, Documentation, and Usage Data.

5. Customer Obligations. Customer will provide and maintain the hardware, software, and other technology and infrastructure that Customer uses to access and use the Factory Technology, including Customer Systems and the security and protection of such Customer Systems. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when accessing and using the Factory Technology. Customer represents and warrants that it has sufficient rights to grant the rights and licenses provided herein and that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Factory to Process Customer Data and exercise the rights granted to it in the Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.

6. Suspension of Service. Factory may immediately suspend Customer’s access to any or all of the Factory Technology if: (a) Customer breaches Section 1.5 or Section 5; (b) any payments required under the Agreement are overdue by 30 days or more; (c) changes to Laws or new Laws require that Factory suspend the Factory Technology (or any part thereof) or otherwise may impose additional liability on the part of Factory; or (d) Customer’s actions risk harm to any of Factory’s other customers or the security, availability, or integrity of the Factory Technology. Where practicable, Factory will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Factory will restore Customer’s access to the Factory Technology.

7. Fees and Taxes.

7.1. Fees. Customer will pay the fees described in the Order (“Fees”). Customer will reimburse Factory for reasonable travel and lodging expenses it incurs in providing Professional Services (“Expenses”). All Fees and Expenses will be paid in U.S. dollars unless otherwise provided in the Order. Fees are invoiced as described in the Order and Expenses are invoiced in arrears. The Order may specify certain usage limitations and pricing tiers. Any usage or provision of the Factory Technology in excess of the amounts or tiers specified in the Order will be charged at Factory’s then-current rates. Unless otherwise set forth in the Order, Factory may increase the Fees for any Renewal Term by providing written notice at least 30 days in advance of the first date of the applicable Renewal Term.

7.2. Payment and Taxes. Except as may be set forth in the Order, Customer will pay Factory (a) all Fees within 30 days after the commencement of the Initial Term and within 30 days after the commencement of each Renewal Term thereafter, and (b) all other Fees not due upfront, monthly within 30 days after the end of the month in which the Fees were accrued. Unless the Order provides otherwise, all Fees and Expenses are due within 30 days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Laws, whichever is less. All Fees and Expenses are non-refundable except as may be set out in Section 8.2(a), Section 11.3, or as otherwise agreed to by the Parties in writing. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to the Order, whether domestic or foreign, other than Factory’s income tax (“Taxes”). If Customer is obligated to withhold any amount from the payment of Fees, then Customer will gross up any such payment so as to offset any withholding made. Fees and Expenses are exclusive of all Taxes.

8. Warranties and Disclaimers

8.1. Mutual Warranties. Each Party represents, warrants, and covenants to the other Party that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation; (b) the execution and delivery of the Agreement by such Party and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Party; (c) the Agreement constitutes a valid and binding obligation of such Party that is enforceable in accordance with its terms; and (d) the entering into and performance of the Agreement by such Party does not and will not violate, conflict with, or result in a material default under any other agreement or obligation by which such Party is or may become subject or bound.

8.2. Factory Warranty

(a) Performance Warranty. Factory warrants to Customer that, during the Term, (i) the Factory Technology will perform as described in the Documentation in all material respects, and (ii) the Professional Services will be performed in a workmanlike manner with competent personnel (the “Performance Warranty”). If Factory breaches the Performance Warranty and Customer, within 30 days of discovering the breach of the Performance Warranty, submits to Factory a written warranty claim identifying in reasonable detail the nature of the breach, then Factory will use reasonable efforts to correct the breach and cause the Performance Warranty to be satisfied or for affected Professional Services to be re-performed. If Factory cannot do so within 30 days after receipt of a warranty claim that satisfies the requirements of the immediately foregoing sentence, then either Party may terminate the applicable Services or Factory Technology and, following termination, Factory will refund to Customer any pre-paid, unused Fees for the terminated portion of the Services or Factory Technology. This Section sets forth Customer’s exclusive remedy and Factory’s entire liability for breach of the Performance Warranty. Failure to install any updates will void the Performance Warranty.

(b) Exceptions. Notwithstanding anything to the contrary, the representations and warranties set forth in Section 8.2(a) do not apply to: (i) issues caused by Customer Data; (ii) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Services or Factory Technology; (iii) issues in or caused by Third-Party Platforms or other third-party systems (including Customer Systems); (iv) use of the applicable Services or Factory Technology other than in accordance with the Documentation; (v) failure to obtain or maintain any integration with a Third-Party Platform; or free or evaluation use of the Factory Technology.

8.3. Disclaimers

(a) General. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8.1 AND 8.2(a), THE FACTORY TECHNOLOGY, ANY SUPPORT, OUTPUT GENERATED FROM THE FACTORY TECHNOLOGY, DELIVERABLES, AND ALL OTHER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FACTORY, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. FACTORY DOES NOT WARRANT THAT CUSTOMER’S ACCESS TO OR USE OF THE FACTORY TECHNOLOGY, ANY OUTPUT FROM THE FACTORY TECHNOLOGY, OR RESULTS OF THE FACTORY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL REVIEW CUSTOMER DATA FOR ACCURACY OR SUITABILITY. FACTORY IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE FACTORY’S CONTROL, INCLUDING THIRD-PARTY PLATFORMS AND CUSTOMER SYSTEMS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.

(b) Artificial Intelligence. WITHOUT LIMITING THE DISCLAIMERS SET FORTH IN SECTION 8.3(a), CUSTOMER ACKNOWLEDGES AND AGREES THAT: (I) THE FACTORY TECHNOLOGY AND OUTPUT ARE NOT PROFESSIONAL ADVICE, INCLUDING LEGAL, DATA SECURITY, MEDICAL, FINANCIAL, OR OTHERWISE, AND CUSTOMER WILL NOT RELY ON THE FACTORY TECHNOLOGY OR OUTPUT AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR A SUBSTITUTE FOR CUSTOMER’S OWN VERIFICATION OF THE ACTIONS PERFORMED BY FACTORY TECHNOLOGY; (II) THE FACTORY TECHNOLOGY RELIES ON ARTIFICIAL INTELLIGENCE TECHNOLOGY TO OPERATE AND MAY PRODUCE INACCURATE OR ERRONEOUS OUTPUT; (III) CUSTOMER IS RESPONSIBLE FOR INDEPENDENTLY EVALUATING OUTPUT AND ANY OTHER INFORMATION CUSTOMER RECEIVES FROM THE FACTORY TECHNOLOGY AND DETERMINING WHAT ACTIONS TO TAKE OR REFRAIN FROM TAKING; AND (IV) CUSTOMER IS SOLELY RESPONSIBLE FOR SETTING ANY PARAMETERS AND GUIDELINES FOR AGENTIC ASPECTS OF THE FACTORY TECHNOLOGY AND FOR ASSURING THAT ANY ACTIONS TAKEN ARE CONSISTENT WITH CUSTOMER’S INTENT. FACTORY IS NOT LIABLE FOR CUSTOMER’S USE OF ANY OUTPUT OR FOR CUSTOMER’S BUSINESS PRACTICES WITH RESPECT TO ANY OUTPUT. FACTORY TECHNOLOGY MAY CONTAIN FUNCTIONALITY PROVIDING FOR HUMAN OVERSIGHT AND CONFIRMATION OF ANY AGENTIC ACTIONS. CUSTOMER DISABLES ANY SUCH OVERSIGHT AND CONFIRMATION FUNCTIONALITY AT ITS OWN RISK.

9. Term and Termination

9.1. Term. The term of the Agreement starts on the “Effective Date” set forth in the Order (or, if no “Effective Date” is specified, then the date of execution of the Order) and continues until termination in accordance with its terms. Unless earlier terminated in accordance with the terms of the Agreement, the Agreement (including the Order) (a) will continue for the initial term specified in the Order (“Initial Term”) and (b) if the Order provides for automatic renewal, will automatically renew for successive terms equal in length to the Initial Term or, if different, such length set forth in the Order (each a “Renewal Term”), unless either Party provides written notice of non-renewal to the other Party at least 30 days (or such other period specified in the Order) prior to the end of the Initial Term or next Renewal Term (as applicable). The Initial Term and each Renewal Term are, collectively, the “Term.” Any Professional Services which by their nature are to be provided only once, will not renew.

9.2. Termination. Either Party may terminate the Agreement immediately upon written notice if the other Party: (a) fails to cure a material breach of the Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 60 days.

9.3. Effect of Termination. Upon expiration or termination of the Agreement, Customer’s access to, and Factory’s obligations to provide, the applicable terminated Services or Factory Technology described will cease and Customer will promptly pay to Factory all unpaid Fees or other amounts that have accrued prior to the effective date of such expiration or termination. In addition, upon termination of the Agreement, each Party will promptly return or delete Confidential Information of the other Party.

9.4. Survival. These Sections survive expiration or termination of the Agreement: 4.4, 4.5, 7, 8.3, 9.3, 9.4, 10, 11, 12, and 14. Except where an exclusive remedy is provided in the Agreement, exercising a remedy under the Agreement, including termination, does not limit other remedies a Party may have.

10. Limitations of Liability

10.1. Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.

10.2. Liability Cap. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS OR DATA BREACHES, EACH PARTY’S (AND ITS SUPPLIERS’ AND LICENSORS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO FACTORY PURSUANT TO THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THE AGREEMENT.

10.3. Cap for Data Breaches. WITH RESPECT TO DATA BREACHES, FACTORY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED IN AGGREGATE THE GREATER OF (A) $1,000,000 USD AND (B) THREE TIMES (3X) THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO FACTORY PURSUANT TO THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THE AGREEMENT. “DATA BREACHES” MEANS THE UNAUTHORIZED USE, ACCESS, OR DISCLOSURE OF CUSTOMER DATA IN POSSESSION OR CONTROL OF FACTORY.

10.4. Excluded Claims. “Excluded Claims” means: (a) unpaid Fees owed to Factory in connection with the Agreement; (b) Customer’s breach of Sections 1.5 or 5; (c) either Party’s breach of Section 12 (except with respect to Data Breaches); and (d) either Party’s indemnification obligations in Section 11.

10.5. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in the Agreement fails of its essential purpose.

11. Indemnification

11.1. Indemnification by Factory. Factory will either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Factory Technology, when used by Customer in accordance with the Agreement, infringes or misappropriates a third party’s patent, copyright, trademark, or trade secret, and Factory will indemnify and hold harmless Customer against any expenses, liabilities, damages and costs of any kind (including attorneys’ fees) resulting from any such Claim.

11.2. Indemnification by Customer. Customer will, at Factory’s request, defend Factory from or settle any Claim brought by a third party against Factory: (a) alleging facts that, if true, would result in Customer’s breach of Section 5, (b) alleging that the Customer Data or Customer Product Materials, when used by Factory in accordance with the Agreement, infringe or misappropriate a third party’s intellectual property or proprietary right, or (c) Customer’s use of Outputs, and Customer will indemnify and hold harmless Factory against any expenses, liabilities, damages and costs of any kind (including attorneys’ fees) resulting from any such Claim.

11.3. Procedures. The indemnifying Party’s obligations in this Section 11 are subject to it receiving: (a) prompt written notice of the Claim (provided that failure to provide such notice promptly will not relieve the indemnifying Party of its obligations unless such failure materially prejudices the indemnifying Party); (b) the exclusive right to control and direct the investigation, defense, and settlement of the Claim, provided the indemnified Party may participate in the defense or settlement of any indemnifiable Claim hereunder at its expense with counsel of its choosing; and (c) all reasonably necessary cooperation of the indemnified Party, at the indemnifying Party’s expense for reasonable out-of-pocket costs. The indemnifying Party may not settle any Claim without the indemnified Party’s prior consent if settlement would require the indemnified Party to take or refrain from taking any action (other than relating to use of the Factory Technology, when Factory is the indemnifying Party).

11.4. Mitigation. In response to an actual or potential Claim relating to infringement, misappropriation, or violation of intellectual property rights, if required by settlement or injunction or as Factory determines necessary to avoid material liability, Factory may at its option: (a) procure rights for Customer’s continued use of the applicable Factory Technology; (b) replace or modify the allegedly infringing portion of the applicable Factory Technology to avoid infringement or misappropriation without reducing such overall functionality of such Factory Technology; or (c) terminate the impacted Services or Factory Technology and refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Term.

11.5. Exceptions. Factory’s obligations in this Section 11 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of the Factory Technology or use of the Factory Technology in combination with items not provided by Factory (including Third-Party Platforms, Customer Systems, or Customer Data); (b) to unauthorized access to or use of the Factory Technology; (c) if Customer settles or makes any admissions about a Claim without Factory’s prior consent; or (d) to free or evaluation use.

11.6. Exclusive Remedy. THIS SECTION 11 SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND FACTORY’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE FACTORY TECHNOLOGY, THE SERVICES, AND THE AGREEMENT.

12. Confidentiality

12.1. Definition. “Confidential Information” means information disclosed to the receiving Party (“Recipient”) under the Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Factory’s Confidential Information includes the terms and conditions of the Agreement and the Factory Technology (including any technical or performance information about the Factory Technology).

12.2. Obligations. As Recipient, each Party will: (a) not disclose Discloser’s Confidential Information and will implement reasonable measures to prevent its disclosure to third parties except as permitted in the Agreement, including Section 4.1; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in the Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Factory is the Recipient, Factory may retain the Customer’s Confidential Information to the extent required to continue to provide the Factory Technology as contemplated by the Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Factory, the subcontractors referenced in Section 14.8) (collectively, “Representatives”), provided Recipient remains responsible for its Representatives’ compliance with this Section 12 and such Representatives are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 12.

12.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the Recipient or its Representatives; (b) it rightfully knew or possessed prior to receipt under the Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.

12.4. Required Disclosures. Nothing in the Agreement prohibits Recipient from making disclosures of Confidential Information if required by Laws, subpoena, court order, or stock exchange rule, provided (if permitted by Laws) it notifies Discloser in advance and reasonably cooperates in any effort to obtain confidential treatment.

13. Publicity. Nothing in the Agreement grants either Party the right to use the name, brand, or logo of the other Party, and neither Party may publicly announce that the Parties have entered into the Agreement, except with the other Party’s prior consent or as required by Laws. However, Factory may use the name, brand, or logo of Customer (or Customer’s parent company) for the purpose of identifying Customer as a licensee or customer on Factory’s website or in other promotional materials, or as part of a list of Factory’s customers in a press release or other public relations materials announcing Customer’s use of the Factory Technology. Factory will cease further use at Customer’s written request. Customer agrees to participate in a case study related to Customer’s use of the Factory Technology and/or provide a quote for Factory to use in its promotional materials, each of the foregoing upon request by Factory.

14. General Terms

14.1. Assignment. Neither Party may assign the Agreement without the prior consent of the other Party, except that either Party may assign the Agreement without the other Party’s consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which the Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

14.2. Governing Law, Jurisdiction and Venue. The Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the Agreement will be the state and United States federal courts having jurisdiction over San Francisco, California, and both Parties submit to the personal jurisdiction of those courts.

14.3. Notices. Except as set out in the Agreement, any notice or consent under the Agreement must be in writing and sent to 410 Townsend St. Suite 100 San Francisco, California 94107 or legal@factory.ai if to Factory or to the address or email address specified on the Order if to Customer, and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery service; or (d) upon the earlier of the receipt of a confirmation email or one day after sending if by email. Either Party may update its address with notice to the other Party pursuant to this Section. Factory may also send operational notices to Customer by email or through the Factory Technology.

14.4. Entire Agreement. These Product Terms, the Order, the DPA, and all attachments referenced herein and therein (such attachments, “Additional Terms,” and, collectively with the Product Terms, Order, and DPA, the “Agreement”) is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. If Customer enters into multiple Orders, then each such Order and the applicable Product Terms form an independent agreement separate and apart from the Agreement. In the Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. The Order may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

14.5. Amendments. Unless as otherwise expressly set forth in the Agreement, any amendments, modifications, or supplements to the Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Factory. The terms in any Customer purchase order or business form will not amend or modify the Agreement and are expressly rejected by Factory; any of these Customer documents are for administrative purposes only and have no legal effect. Notwithstanding the foregoing, Factory may from time to time revise these Product Terms or any Additional Terms and such updated version of these Product Terms or the Additional Terms (other than informational updates which are effective immediately upon posting such updates) will become effective on a going forward basis at the start of the first Renewal Term occurring at least 60 days after the date on which Factory posted the updated Product Terms.

14.6. Waivers and Severability. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of the Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of the Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.

14.7. Force Majeure. Neither Party is liable for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, electrical failures, telephone communication system failures, change in Laws, refusal of government license, or natural disaster.

14.8. Subcontractors. Factory may use subcontractors and permit them to exercise Factory’s rights, but Factory remains responsible for their compliance with the Agreement and for its overall performance under the Agreement.

14.9. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.

14.10. Open Source. The Factory Software may incorporate third-party open source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of the Agreement.

14.11. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using the Factory Technology. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Factory Technology in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Factory Technology any information controlled under the U.S. International Traffic in Arms Regulations.

14.12. Government End-Users. Elements of the Factory Technology are commercial computer software. If Customer or any of its Users is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Factory Technology or any related documentation of any kind, including technical data and manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Factory Technology was developed fully at private expense. All other use is prohibited.

14.13. Conflicts in Interpretation. Inconsistencies or conflicts between the terms of the Agreement will be resolved with respect to such inconsistency or conflict in the following descending order of precedence: (a) the Order; (b) the Product Terms; and (c) the Documentation.