AI-AS-A-SERVICE AGREEMENT
VIRTUOUS AI
This AI-as-a-Service Agreement (this “Agreement”) is effective as of the date set forth in the initial applicable Order Form and/or Statement of Work referencing this Agreement (the “Effective Date”) and is between the undersigned client (the “Client”) and Virtuous AI, Inc., a Delaware corporation (“Virtuous AI”). For and in consideration of the mutual terms and conditions set forth herein, Virtuous AI and Client hereby agree as follows:
1. SCOPE OF AGREEMENT
Virtuous AI provides certain services relating to artificial intelligence. The specific services provided to Client (the “Services”) shall be as described in one or more written scopes of work (each, a “Scope of Work”) that are either set forth in an Order Form or Scope of Work executed or submitted by Client and accepted by Virtuous AI, including electronic execution. The terms and conditions governing the provision of the Services and relationship between Virtuous AI and Client are set forth in (i) this Agreement (including all exhibits, schedules, and addendums attached hereto), (ii) the applicable Scope of Work, (iii) to the extent the Services include or involve any third party service or product, the terms and conditions applicable to such third party service or product. For the avoidance of doubt, except as otherwise indicated, all references to the Agreement will refer to all the documents referenced in the preceding sentence. We may update these Terms and Conditions from time to time. We will notify you of any material changes by posting a notice on our website or by other means as we deem appropriate. The parties may also agree to additional or future Virtuous AI Services, an adjustment to the Fees, or other terms pursuant to another signed Scope of Work, written agreement, amendment, or work order executed by the parties. To the extent any other persons (including, without limitation, Client’s own users or customers) (each such person, an “End User”) use, access, or benefit from the Services or the Data (as defined below) on behalf of or through Client, such use, access, and benefits shall be governed by the terms of this Agreement.
2. LICENSE OF SERVICES
2.1 Subject to this Agreement, Virtuous AI hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to access and use the Services (including any platform, dashboard, website or portals which may also be made available to Client as part of or through the Services) for Client’s internal business purposes until the termination or expiration of the applicable Scope of Work. To the extent Virtuous AI delivers or makes available any software to Client in connection with this Agreement for installation on Client’s servers, Client will have a non-exclusive, non-transferable, non-sublicensable and revocable license to use the software solely in connection with the Services as contemplated hereunder. Virtuous AI may use certain affiliates, subsidiaries, consultants, contractors, subcontractors and/or third parties to provide the Services, in whole or in part, to Client and Virtuous AI may resell third party services or products to Client as part of the Services. All right, title to and interest (including any and all intellectual property rights and model outputs) in the Services and copies thereof remain exclusively with Virtuous AI or, if applicable, such third parties.
2.2 To the extent needed for Virtuous AI to provide the Services, Client hereby grants to Virtuous AI a non-exclusive, non-transferable, non-sublicensable and revocable right and license to manage, ingest, transfer, encrypt, use, convert, store, process, and compute all data, property or intellectual property (including, but not limited to, any and all data in all forms and formats, images, video, audio, programming, computer code, graphics or text, regardless of whether such items are owned by Client or third parties) (collectively, the “Data”) provided or made available by Client, its End Users, or its agents to Virtuous AI.
2.3 Client shall not: (i) use the Services for the benefit of any other third party other than its End Users or customers; (ii) attempt to reverse engineer or decompile the Services; (iii) create derivative works based on the Services; (iv) copy, frame or mirror any part or content of the Services; (v) access the Services in order to build a competitive product or service; (vi) access such Services for any benchmarking purposes; (vii) sublicense, sell, resell, rent or lease the Services; (viii) use the Services to compute, process, store or transmit malicious code, infringing, libelous, or otherwise unlawful, illegal, immoral or tortious material, or to compute, process, store or transmit material in violation of third-party privacy rights, either on its own behalf or on behalf of its customers or End Users; (ix) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (x) attempt to gain unauthorized access to the Services or their related systems or networks.
2.4 Client shall be solely responsible for: (i) ensuring accuracy, quality, integrity, safety, and legality of Client’s own Data or the data of third parties (including, without limitation, End Users, customers and the like) and of the means by which Client acquired such Data; (ii) ensuring that Client and Virtuous AI have all rights needed for (x) Client to provide and transfer the Data to and from Virtuous AI and (y) Virtuous AI to manage, compute, process and/or store the Data as needed to provide the Services; (iii) using commercially reasonable efforts to prevent unauthorized access to or use of the Services and notifying Virtuous AI promptly in writing of any such unauthorized access or use; (iv) using the Services only in accordance with this Agreement, the applicable Scope of Work, the Terms & Conditions and applicable laws and regulations; and (v) and complying with any other responsibilities as set forth in the applicable Scope of Work.
3. FEES AND TERMS OF PAYMENT
3.1 The fees (“Fees”) for the Services and terms of payment for the Fees are as set forth in the applicable Scope of Work and are due in full in advance of Virtuous AI providing Services for the applicable phase. The Fees are based upon Virtuous AI’s then current estimates of the charges and costs needed to provide the Services. Virtuous AI may increase the Fees, and Client shall pay such increased Fees, (i) if Virtuous AI’s actual costs associated with the amount of data, the CPU/GPU utilization, and the volume of API calls needed to provide the Services to Client exceed the Fees set forth in the applicable Scope of Work for such Services or (ii) upon (30) calendar days’ advance written notice to Client.
3.2 Fees are exclusive of all federal, state, municipal and other governmental excise, sales, use, value added, withholding and other taxes or charges now in force or enacted in the future. Client agrees to pay on or before their due date any such taxes which arise out of or relate to the Services or this Agreement.
3.3 In the event of a dispute concerning the non-payment of any Fees, the prevailing party will be entitled to receive from the other party the reimbursement of its reasonable attorneys’ fees incurred, in addition to all other recovery to which it is entitled.
3.4 If any Fees are not paid when due, then in addition to all other rights and remedies under the Agreement or applicable law, (i) Virtuous AI may suspend the Services (which will include, without limitation, suspension of Client’s access to the Data) and (ii) any Fees not paid when due will accrue interest at the lesser of 1.5% per month or the maximum legal rate, until paid in full. All Fees are non-refundable.
3.5 Customer's use of platform is subject to the usage parameters, thresholds, and limits set forth in the applicable Scope of Work document – and / or dictated by thresholds defined by customer’s choice of Primary, Essential, Unlimited, or A La Carte pricing -- including but not limited to limits on compute resources, API calls, data storage, and data processing volumes (“Usage Limits”). Virtuous AI may monitor Customer’s usage of the platform to verify compliance with the Usage Limits. Customer agrees to cooperate in good faith with any reasonable request by VAI to assess usage levels. Should Customer exceed the applicable Usage Limits, VAI may, at its discretion: (a) notify Customer of such excess usage; (b) charge Customer additional fees in accordance with VAI’s then-current excess usage pricing, as may be published or provided upon request; and/or; (c) require Customer to upgrade to a higher tier of service. VAI reserves the right to modify excess usage pricing upon thirty (30) days’ prior written notice. Continued use of the platform beyond the Usage Limits following such notice will constitute acceptance of the modified rates. VAI reserves the right to apply technical limitations (including rate limiting or throttling) to ensure the overall performance and stability of the Services in the event of sustained or extraordinary excess usage.
4. TERM AND TERMINATION
4.1 Term and Renewals. The term of this Agreement shall commence on the Effective Date and shall remain in effect for so long as any Scope of Work is in effect between the parties. Renewal of the term shall be as set forth in the applicable Scope of Work. Any expiration or termination of this Agreement shall not modify or alter any right or obligation of a party hereto which arose prior to such expiration or termination.
4.2 Termination rights are as set forth in the applicable Order Form or Scope of Work.
4.3 Handling of Data Upon Termination. Upon termination of this Agreement, Virtuous AI shall be under no obligation to store or transfer any Data for, to, or on behalf of Client.
5. VIRTUOUS AI INTELLECTUAL PROPERTY
Virtuous AI does not grant any right, license (except as specifically provided herein) or interest in the Services or in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now or in the future by Virtuous AI, its affiliates or any third parties. All applicable rights to the Services and/or such patents, copyrights, trademarks, and trade secrets are and shall remain the exclusive property of Virtuous AI, its affiliates or third parties (as applicable). Virtuous AI shall have the sole and exclusive right to license the Services to its customers, resellers, distributors or other third parties at its sole option. Virtuous AI, in the performance of its obligations hereunder, may use its Confidential Information (as defined below) including, but not limited to, its software programs, platforms, methodologies and/or processes. Virtuous AI shall retain all right, title to and interest in its Confidential Information, software programs, software code, source code, object code, algorithms, base models, platforms, interfaces, methodologies and/or processes. Client shall not have the right to license, sublicense or otherwise offer for sale the Services and/or any related integration software programs. All model outputs, ideas, inventions, processes, trade secrets, data, improvements, developments, formulae, know-how, knowledge, patent applications and patents and other intellectual property which are characterized, conceived, developed, derived, discovered, generated, identified, first reduced to practice or otherwise made, as the case may be, by employees, servants or agents of Virtuous AI in connection with, or as a result of, the Services or the performance of the obligations under this Agreement shall be the exclusive property of Virtuous AI.
6. CONFIDENTIALITY
6.1 terms, conditions and existence of this Agreement shall be deemed Confidential Information, except to the extent it is posted publicly by Virtuous AI or disclosure is required by law.
6.2 Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of a breach of this Agreement; (ii) is already known by the Receiving Party at the time of disclosure as evidenced by the Receiving Party’s written records; (iii) becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it on a non-confidential basis; (iv) was or is independently developed by or for the Receiving Party without reference to the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records; or (v) is an anonymized version of any Data. In the event the Receiving Party is required to disclose such Confidential Information pursuant to law, regulation or court or administrative order, prior to making any such legally required disclosure, the Receiving Party shall notify in writing the Disclosing Party as soon as is practicable under the circumstances in order that the Disclosing Party may seek a protective order. The Receiving Party, prior to any such legally required disclosure, shall obtain an opinion of counsel from Receiving Party’s counsel with respect to the requirements and scope of any such legally required disclosure.
6.3 The Receiving Party agrees that it will not use the Disclosing Party’s Confidential Information except in connection with the performance of its obligations hereunder and will not disclose, make available, divulge, disclosure, copy or communicate the Disclosing Party’s Confidential Information to any third party. The Receiving Party shall treat and protect such Confidential Information in the same manner as it treats its own Confidential Information of like character, but with not less than reasonable care.
6.4 Upon written request of the Disclosing Party, the Receiving Party shall immediately cease its use of the Disclosing Party’s Confidential Information and within thirty (30) calendar days either return or destroy (and certify as to such destruction in writing) all Confidential Information, including any copies thereof. The obligations of this Section shall continue for a period of four (4) years after termination or expiration of this Agreement. Notwithstanding the foregoing, the obligations of confidentiality with respect to a trade secret of Virtuous AI shall continue for so long as Virtuous AI protects such trade secret as a trade secret under applicable law.
6.5 Client acknowledges that each of the restrictions contained in this Agreement relating to the nondisclosure and non-use of Confidential Information is reasonable and necessary in order to protect legitimate interests of Virtuous AI and that any violation thereof would cause irreparable injury to Virtuous AI. Client agrees that in the event of any breach of this Section 6, Virtuous AI shall be authorized and entitled to preliminary and permanent injunctive relief, without the need to post bond or provide proof of actual damages, as well as an equitable accounting and possession of all profits or benefits arising out of such violation and any damages for breach of this Agreement that may be applicable. These rights and remedies shall be independent, severable, cumulative and binding on Client’s agents or permitted successors or assigns and shall be in addition to any other rights or remedies to which Virtuous AI may be entitled in law or equity.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Client represents, warrants and covenants to Virtuous AI as follows:
(a) Client has the full power, capacity and authority to enter into and perform its obligations as set forth herein (including, without limitation, all rights needed for Client to legally transfer the Data to and from Virtuous AI and for Virtuous AI or its affiliates to compute, process, convert, reformat, and/or store such Data).
(b) This Agreement, the applicable Scope of Work, and the Terms & Conditions have been duly accepted and executed by an authorized representative of Client.
(c) There is no claim, action, suit, proceeding or governmental investigation of any nature pending or threatened against Client or its End Users relating to Client’s execution of this Agreement or the performance of Client’s obligations hereunder.
(d) Client’s performance of this Agreement or its use of the Services to compute, process, convert, reformat, and/or store Data shall not violate or conflict with any agreement to which Client or its End Users are a party.
(e) Client shall comply with this Agreement, the applicable Scope of Work, and the Terms & Conditions and all applicable laws and regulations in performing its obligations under this Agreement and in its use of the Services (including, without limitation, as to any Data that Client or Virtuous AI manages, processes, computes, converts, or stores via the Services).
(f) Client will maintain and enforce safety and security procedures with respect to its access and use of the Services that are (i) at least equal to industry standards and (ii) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access to the Services. Client understands and agrees it shall be solely responsible for any access or activity by way of Client’s credentials and/or account.
(g) Client will maintain commercial liability insurance, with commercially reasonable terms and limits, at its sole cost and expense, insuring against any and all losses it or its End Users may incur in connection with the handling of the Data, transferring the Data to or from Virtuous AI and Virtuous AI’s processing, computing, converting and/or storing of the Data pursuant to this Agreement.
7.2 Virtuous AI represents, warrants and covenants to Client as follows:
(a) Virtuous AI has the full power, capacity and authority to enter into and perform its obligations as set forth herein.
(b) Virtuous AI shall comply with all applicable laws and regulations in performing its obligations under this Agreement.
8. INDEMNIFICATION
8.1 Client will indemnify, defend and hold Virtuous AI, its affiliates and their respective owners, shareholders, members, managers, directors, officers, employees, agents, customers, successors and assigns (each, a “Virtuous AI Party”) harmless from and against any and all allegations, claims, liabilities, losses, suits, judgments, penalties, damages, expenses and costs (including, without limitation, reasonable attorney’s fees and expenses, expert witness fees and expenses, court costs and the like) of any kind or character (each a “Claim”) arising out of or in any way related to (i) any misrepresentation of Client under this Agreement; (ii) any breach by Client of this Agreement; (iii) any threatened or actual violation by Client of any law, statute, regulation or ordinance, or breach of any agreement with any third party; (iv) any violation by Client or its End Users or customers of the intellectual property rights of another party; or (v) any dispute between Client and any of its End Users or customers. Neither Client nor the counsel retained to defend any Virtuous AI Party shall do any of the following without Virtuous AI’s prior written consent: (x) settle any Claim on behalf of any Virtuous AI Party, (y) agree to any admission of wrongdoing or (z) consent to an entry of judgment against any Virtuous AI Party. At its option, Virtuous AI may elect to defend any Claim with counsel of its choice and any expenses (including reasonable attorneys’ fees and expenses and expert witness fees and expenses) which any Virtuous AI Party may pay or incur in defending or satisfying the Claim shall be promptly paid to the applicable Virtuous AI Party by Client after demand by Virtuous AI.
8.2 Virtuous AI will indemnify, defend and hold harmless Client and its owners, shareholders, members, managers, directors, officers, employees and agents harmless from and against any and all Claims that the Services infringe any third-party patent, copyright or trademark, excluding any Claim originating from an US embargoed country. Virtuous AI shall have no obligation of indemnification or defense as set forth herein if (i) the Claim is based upon any combination of the Services with equipment, software or services not provided by Virtuous AI if such Claim would have been avoided but for such combination; (ii) the Services have been modified by a party other than Virtuous AI or its authorized representatives; or (iii) if Client continues use of the allegedly infringing Services after written notice to cease such use. In the event that the Services are or are likely to become the subject of a claim of infringement, then Virtuous AI, at its sole option and expense, may (x) modify the Services so that they are non-infringing, but functionally equivalent; (y) procure for Client the right to continue to use the allegedly infringing Services; or (z) if none of the foregoing are commercially reasonable, terminate this Agreement and direct Client to cease use of the allegedly infringing Services. THIS SECTION STATES VIRTUOUS AI’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.
9. LIMITATION AND DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED “AS IS”. EXCEPT AS EXPLICITLY STATED HEREIN, VIRTUOUS AI DISCLAIMS ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUALITY OF INFORMATION OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL VIRTUOUS AI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT HEREUNDER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM. IN NO EVENT SHALL VIRTUOUS AI BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER, OR FOR LOSS OF PROFIT, LOSS OF REVENUE, DAMAGE TO REPUTATION, OR LOSS OF GOODWILL, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THE IMMEDIATELY PRIOR SENTENCE SHALL NOT APPLY TO (A) THE GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF A PARTY, (B) INDEMNIFICATION OBLIGATIONS OWED TO VIRTUOUS AI HEREUNDER, (C) OR NON-PAYMENT OF FEES TO VIRTUOUS AI. UNDER NO CIRCUMSTANCES, HOWEVER, SHALL VIRTUOUS AI BE LIABLE TO CLIENT IN ANY AMOUNT FOR ANY LOSS OF OR DAMAGE TO DATA OR FOR ANY FEES IMPOSED BY ANY GOVERNMENTAL AUTHORITY (INCLUDING, WITHOUT LIMITATION, ANY CHARGES, FAULTS, FEES, PENALTIES, DUTIES, TAXES OR ASSESSMENTS OR ANY DAMAGES RELATED TO THE FOREGOING) ARISING OUT OF OR RELATED TO THE SERVICES, ALL OF WHICH ARE CLIENT’S SOLE RESPONSIBILITY.
11. GENERAL
11.1 Entire Agreement, Amendment and Waiver. This Agreement, together with the applicable Order Form, Scope of Work, and Terms & Conditions, constitutes the entire understanding and agreement between the parties and supersedes all prior and contemporaneous agreements, representations and understandings, whether oral or written, with respect to the subject matter hereof. Any terms and conditions set forth in any purchase order(s), terms of service, or other documentation that Client provides to Virtuous AI shall be null and void, and the terms and conditions of the Agreement shall control. Each party acknowledges that it has not relied upon any promise, representation or statement of the other party except as expressly set forth herein. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each party. Failure by either party to insist upon strict compliance with any term of this Agreement in any one or more instances will not be deemed to be a waiver of its rights to insist upon such strict compliance with respect to any subsequent failure.
11.2 Assignment. Client shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of Virtuous AI, which may be withheld in Virtuous AI’s sole and absolute discretion. Virtuous AI, in its sole and absolute discretion and without the consent of Client, may assign or otherwise transfer its rights or delegate its duties under this Agreement.
11.3 To the email address specified in the applicable Order Form.
To Virtuous AI: Email: info@VirtuousAI.com
To Client: See the applicable Scope of Work.
11.4 Relationship. The relationship of the parties is that of service provider (Virtuous AI) and customer (Client) and nothing in this Agreement is intended to create or shall be construed as creating between the parties the relationship of joint ventures, co-partners, employer/employee, principal and agent, franchisor and franchisee, or a business opportunity. Neither party shall attempt to create any obligation or make any representation on behalf of or in the name of the other party. Virtuous AI does not represent or promise to Client that the Services or this Agreement guarantees any future success, profits, performance or any other result for Client’s future business efforts (if any).
11.5 Marketing and Publicity: Client grants Vendor the right to use Client’s name, brand, and logo in Vendor’s marketing materials, website, and press releases, provided that Vendor obtains prior written consent from Client before each such use.
11.6 Governing Law; Dispute Resolution. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of California without regard to its choice of law provisions or policies. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or termination hereof shall be settled by binding arbitration by JAMS in accordance with its Streamlined Arbitration Mediation Procedures and Procedures (the “Rules”). The arbitration shall be heard by one arbitrator selected in accordance with the Rules, with venue in Santa Clara County, California. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. Both parties waive the right, if any, to any claim that this Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void. The arbitrator shall make his or her award no later than thirty (30) calendar days after the close of evidence or the submission of final briefs, whichever occurs later and shall deliver to the parties a reasoned opinion detailing the facts and rationale supporting the award. The decision of the arbitrator(s) shall be final and binding on all parties. Notwithstanding the foregoing, each party waives the right to arbitrate any dispute as a class action, either as a member or a representative. Class arbitration (including the presiding over any form of a representative or class proceeding) and the consolidation of claims made by more than one plaintiff are both expressly prohibited. The parties hereby agree to arbitrate any dispute solely on an individual basis. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. Notwithstanding anything to the contrary, if either party desires to seek injunctive or other equitable relief that does not involve the payment of money, then those claims shall be brought in a state or federal court located in California, and the parties hereby irrevocably and unconditionally consent to personal jurisdiction of such courts and venue in California in any such action for injunctive relief or equitable relief.
11.7 Attorneys’ Fees. In the event any action or arbitration is brought to interpret or enforce any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and expenses, expert witness fees and expenses and all other costs and expenses (including any and all court, arbitration and/or appellate costs and expenses) incurred pursuant to such action or arbitration, in addition to any other recovery permitted under applicable law.
11.8 Severability. If any term of this Agreement is declared invalid or unenforceable by a court or other body of competent jurisdiction, the remaining terms of this Agreement shall remain in full force and effect.
11.9 Headings. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.
11.10 Counterparts. This Agreement may be executed in any number of counterparts (including via facsimile signature, electronic signature, PDF or scanned signature), each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
11.11 Force Majeure. Except for the timely payment of Fees or other amounts due to Virtuous AI hereunder (which shall not be excused by any event of force majeure), neither party shall be liable to the other for any loss, injury, delay, expenses or damages arising out of any cause or event not within its reasonable control and not arising from the negligence or intentional misconduct of such party including, but not limited to: (i) riots, wars or hostilities between any nations; (ii) Acts of God, fires, storms, floods or earthquakes; (iii) strikes or labor disputes; (iv) vendor delays; (v) shortages or curtailments of materials, power or other utility services; (vi) governmental restrictions or trade disputes; (vii) manufacturing delays; (viii) or other similar contingencies.
11.12 Assumption of Risk. Virtuous AI will use commercially reasonable efforts to mitigate loss or damage to the Data, however, Virtuous AI cannot and does not guarantee such Data will be free from damage or loss (including, without limitation, during transfer of the Data to or from Virtuous AI, storage of the Data, or during Virtuous AI’s monitoring, processing, computing, conversion or reformatting of the Data). Client assumes and accepts any and all risk and potential loss arising out of or related to power outages, internet disconnection, cyber-attacks, data loss, network malfunctions or maintenance, hacks, damage to Data while being managed, converted, stored, reformatted, shipped, or transferred, or with respect to errors or malfunctions, equipment downtime, equipment malfunction, equipment failure and the like.
11.13 Export Laws; Data Regulations. Client shall comply with the export control laws or regulations of the United States or other export control laws, rules or regulations, as applicable. Client shall not provide Virtuous AI with Data containing unencrypted health or medical data, individually identifiable health information, payment card data, consumer information data, personal data, or similarly sensitive personal information that imposes specific data privacy or security obligations for the processing, transfer, or storage of such data unless Client notifies Virtuous AI in advance in writing and Virtuous AI subsequently assents in writing. In such case, Client shall be deemed to be both the controller and processor of such data. Client shall comply with all applicable laws in the controlling and processing of regulated data and/or other nonpublic personal information.
11.14 Data Ownership and Anonymous Data. All Client Data is, or shall be, and shall remain, the property of Client. Virtuous AI may accumulate and aggregate certain statistical and related data in order to improve the performance and functionality of its Services, to develop new products and/or Services or to analyze the usage of Virtuous AI’s Services. Virtuous AI may use aggregated anonymous data for such purposes as Virtuous AI, in its sole discretion, deems appropriate.
11.15 No Third-Party Beneficiaries. Other than Virtuous AI’s affiliates, there are no third-party beneficiaries to this Agreement (including, without limitation, any End Users or customers of Client).
