Terms Of Service
HESE SERVICE TERMS FOR PROXI AI (THESE “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND HELIOS INTELLIGENCE PLATFORMS, INC. (“HELIOS”). BY CLICKING THE “I ACCEPT” BUTTON, EXECUTING AN ORDER FORM THAT INCLUDES THESE TERMS BY REFERENCE, OR USING HELIOS’ PROXI AI PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE ORDER FORM. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE HELIOS SERVICE REFERENCED IN THE ORDER FORM. HELIOS MAY MAKE CHANGES TO THESE TERMS AT ANY TIME. HELIOS WILL UPDATE THE PAGE HOSTING THESE TERMS, OR HELIOS WILL SEND AN EMAIL NOTIFICATION TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT AND NOTIFY CUSTOMER OF THE CHANGES WHEN CUSTOMER NEXT ACCESSES PROXI AI PLATFORM FOLLOWING SUCH CHANGES. CUSTOMER’S CONTINUED USE OF PROXI AI AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS. CUSTOMER ACKNOWLEDGES THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 7.3 AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 12 WHICH AFFECT CUSTOMER’S RIGHTS.
1. DEFINITIONS.
1.1. “Authorized Purposes” means Customer’s internal business purposes if the Subscription Term is not for an Evaluation License or a Beta License. If the Subscription Term is for an Evaluation License or a Beta License, then “Authorized Purposes” means Customer’s internal testing and evaluation use only and not for any production use.
1.2. “Beta License” means a non-production license granted to Customer with respect to a pre-release version of Proxi AI for the limited period specified in the Order Form.
1.3. “Customer Data” means all data submitted, stored, posted, displayed, uploaded, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by Proxi AI, including any Personal Data contained in the foregoing.
1.4. “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
1.5. “Data Protection Laws” means all applicable laws, rules, regulations, and guidance governing privacy, data Processing, data protection, data security, marketing, online advertising, payment processing, the delivery of electronic communications, encryption, or confidentiality.
1.6. “Data Subject” means the individual about whom Personal Data relates; the term also includes a “consumer” and other equivalent terms as defined by applicable Data Protection Law.
1.7. “De-Identified Data” means any data that is not (or is no longer) linked or linkable to Customer or any individual, household, or device and cannot reasonably be used to infer information about a particular individual, household, or device; this includes “deidentified information” and similar terms under applicable privacy laws. .
1.8. “Documentation” means the printed, paper, electronic or online user instructions and help files made available by Helios for use with Proxi AI, as may be updated from time to time by Helios.
1.9. “Effective Date” means the initial start date of the earliest Subscription Term specified in an Order Form.
1.10. “Evaluation License” means a non-production license granted to Customer with respect to Proxi AI for the limited period of time specified in the Order Form.
1.11. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.12. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.13. “Open Source software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.14. “Order Form” means the ordering documents for Proxi AI purchased from Helios that are executed hereunder by the parties from time to time, including modifications, supplements and addendums thereto. Order Forms are incorporated herein.
1.15. “Output” means the content and information generated by or provided through Proxi AI, including, without limitation, AI-generated summaries of Customer Data and/or of publicly-available data.
1.16. “Personal Data” means any information (regardless or format) that identifies, describes, relates to, or is linked or reasonably linkable to an identified or identifiable Data Subject, household, or device; the term also includes “personal information,” “personal data,” “sensitive personal information,” and other equivalent information governed by applicable Data Protection Law.
1.17. “Process,” “Processing” or “Processed” includes any operation which is performed on Personal Data, including and not limited to, collection, recording, organization structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.18. “Proxi AI” means the generative AI platform services provided by Helios to Customer pursuant to these Terms, and for all purposes of these Terms, such services exclude any Open Source software that may be used to provide Proxi AI and all Third Party Offerings.
1.19. “Subscription Term” means the subscription period for Customer’s use of Proxi AI set forth in an Order Form.
1.20. “Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of Proxi AI, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, which interoperate with Proxi AI.
1.21. “Users” means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to Proxi AI during the Subscription Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer to access and use Proxi AI, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer (or by Helios at Customer’s request).
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1. Orders. Subject to the terms and conditions contained in these Terms, Customer may purchase subscriptions for Users to access and use Proxi AI pursuant to Order Forms. Unless otherwise specified in the applicable Order Form, Proxi AI is purchased as User subscriptions and may be accessed by no more than the number of Users specified in the applicable Order Form. Unless otherwise specified in the applicable Order Form, User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of Proxi AI. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Helios regarding any future functionality or features. If there is any inconsistency between an Order Form and these Terms, the Order Form controls. Helios may add, remove, or change features of Proxi AI in its sole discretion and may choose to not ever release features provided under a Beta License.
2.2. Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Helios hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use Proxi AI in accordance with the Documentation, and in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of Proxi AI may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
2.3. Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of Proxi AI; (b) modify, translate, or create derivative works based on any element of Proxi AI or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use Proxi AI; (d) use Proxi AI for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of Proxi AI without Helios’s prior written consent; (g) use Proxi AI for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of Proxi AI; (i) introduce any Open Source software into Proxi AI; (j) attempt to gain unauthorized access to Proxi AI or their related systems or networks; (k) use Proxi AI or any information from Proxi AI (including Output) to create, train, or improve (directly or indirectly) any similar or competitive product or service or for purposes of harvesting or gathering any third party’s content or data; or (l) attempt to use Proxi AI to circumvent any license or other content restrictions.
2.4. Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Helios.
3. THIRD PARTY OFFERINGS.
3.1. Use of Third Party Offerings. Helios or third parties may from time to time make Third Party Offerings available to Customer. Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Helios does not endorse, warrant or support any Third Party Offering, whether or not they are listed by Helios as operable or integrate able with Proxi AI. If Customer installs or enables any Third Party Offering for use with Proxi AI, Customer acknowledges that and agrees that Helios shall allow providers of that Third Party Offering to have access to Customer Data as required for the interoperation and support of such Third Party Offering with Proxi AI. Helios shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings. Customer further acknowledges and agrees that such Third Party Offerings may be subject to separate terms, conditions, and licensing restrictions, and Customer shall be solely responsible for understanding and complying with the same. 2.2. Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Helios hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use Proxi AI in accordance with the Documentation, and in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of Proxi AI may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
3.2. Integration with Third Party Offerings. Proxi AI may contain features designed to interoperate with Third Party Offerings. To use such features, Customer may be required to obtain access to such Third Party Offering from their providers. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Proxi AI features on reasonable terms, Helios may cease providing such features without entitling Customer to any refund, credit, or other compensation.
3.3. Third Party Hosting. Customer acknowledges that Helios relies on the services of one or more third parties, including, but not limited to, cloud service providers and generative AI foundation model providers, to deliver the features and functionalities of Proxi AI. Customer authorizes Helios to Process Customer Data using such service providers, and to have such service providers Process Customer Data, to the extent necessary for such service providers to support the delivery of the features and functionalities of Proxi AI. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
4. PASSWORDS; SECURITY.
4.1. Passwords. Helios may issue to Customer, or require Customer to create, user logins and passwords for each of their Users authorized to access and use Proxi AI. Customer shall be, and shall ensure that each of their respective Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of Proxi AI that occurs using logins and passwords Helios issues to any of Customer. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Helios of any unauthorized use of any account or login and password issued to Users, or any other breach of security known to Customer. Helios shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
4.2. No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of Proxi AI. Customer will immediately notify Helios of any breach, or attempted breach, of security known to Customer.
4.3. Security. Helios will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a manner consistent with what Helios supplies generally to its other customers. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Helios, the use of, or connection to, the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Proxi AI and Customer Data. Helios cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the internet or otherwise or that any such security precautions will be adequate or sufficient. Helios shall not (a) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (b) access Customer Data except to the extent permitted under Section 2.4 and to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
5. CUSTOMER OBLIGATIONS.
5.1. Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and their respective Users to access and use Proxi AI via the internet; (b) contracting with third-party ISP, telecommunications and other service providers to access and use Proxi AI via the internet; and (c) paying all third-party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or an Order Form, Helios shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.2. Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using Proxi AI. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of Proxi AI, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to Proxi AI which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of Proxi AI or another’s computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use Proxi AI for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to Proxi AI or interfere with other ability to access or use Proxi AI; (g) not to distribute, promote or transmit through Proxi AI any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of Proxi AI or another person or entity’s use and enjoyment of similar services; (j) not to use Proxi AI in any manner that impairs Proxi AI, including without limitation the servers and networks on which Proxi AI is provided; (k) to comply with all regulations, policies and procedures of networks connected to Proxi AI and Helios’s service providers; and (l) to use Proxi AI only in accordance with the Documentation. Customer acknowledges and agrees that Helios neither endorses the contents of any Customer communications or Customer Data nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Helios may remove any violating content posted or stored using Proxi AI or transmitted through Proxi AI, without notice to Customer. Notwithstanding the foregoing, Helios does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in Proxi AI for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into Proxi AI.
5.3. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Helios to communicate with Customer from time to time regarding Proxi AI, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Helios of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Helios at the email addresses specified by its Users for login purposes. In addition, Customer agrees that Helios may rely and act on all information and instructions provided to Helios by Users from the above-specified email address.
5.4. Temporary Suspension. Helios may temporarily suspend Customer’s or their respective Users’ access to Proxi AI in the event that either Customer any of their Users is engaged in, or Helios in good faith suspects Customer or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Helios will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Helios’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Helios shall not be liable to Customer, any of its Users, or any other third party if Helios exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Helios’s reasonable satisfaction, Helios shall reinstate Customer’s and their respective Users’ access and use of Proxi AI. Notwithstanding anything in this Section to the contrary, Helios’s suspension of Proxi AI is in addition to any other remedies that Helios may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Helios may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6. FEES AND PAYMENT.
6.1. Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Helios supports. Except as otherwise specified in these Terms or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) the number of Users of Subscription Terms purchased cannot be decreased during the relevant Subscription Term shown on the applicable Order Form(s). User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
6.2. Invoices and Payment. All fees for Proxi AI will be invoiced in advance and in accordance with the applicable Order Form. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Helios and notifying Helios of any changes to such information.
6.3. Overdue Charges. If Helios does not receive fees by the due date, then at Helios’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.4. Suspension of Service. If any amounts owed by Customer for Proxi AI are 14 or more days overdue, Helios may, without limiting Helios’s other rights and remedies, suspend Customer’s and its Users’ access to Proxi AI until such amounts are paid in full.
6.5. Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument, Order Form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under these Terms or under any order form or similar document ancillary to or referenced by these Terms shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Helios has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Helios unless Customer has furnished Helios with valid tax exemption documentation regarding such Taxes at the execution of these Terms or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by these Terms. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Helios for any Taxes and related costs paid or payable by Helios attributable to Taxes that would have been Customer’s responsibility under this Section 6.5 if invoiced to Customer. Customer shall promptly pay or reimburse Helios for all costs and damages related to any liability incurred by Helios as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 6.5 shall survive the termination or expiration of these Terms.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1. Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
7.2 . Evaluations of New Proxi AI. From time-to-time, Helios may invite Customer to try, at no charge, Helios products or services that are not generally available to Helios customers, or similar services that are considered “beta” or “test” services (“Non-GA Services”). Customer may accept or decline any such Non-GA Services in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms that may be provided by Helios to Customer prior to or concurrent with Helios’s invitation to the applicable Non-GA Services. Non-GA Services are not considered “Proxi AI” hereunder. Helios has the right to discontinue Non-GA Services at any time in its sole discretion and may never make them generally available. NON-GA SERVICES ARE PROVIDED ON AN “AS-IS” OR “AS AVAILABLE” BASIS. PROXI AI MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES ABOUT THE NON-GA SERVICES. ALL USE OF THE NON-GA SERVICES ARE AT CUSTOMER’S OWN RISK. HELIOS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES.
7.3. Disclaimer. PROXI AI, ANY THIRD-PARTY OFFERINGS, AND ANY NON-GA SERVICES ARE PROVIDED ON AN “AS-IS” OR “AS AVAILABLE” BASIS. CUSTOMER’S USE OF PROXI AI, THIRD-PARTY OFFERINGS, AND ANY NON-GA SERVICES IS AT ITS OWN RISK. HELIOS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY HELIOS IN SECTION 7 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH PROXI AI IS LICENSED AND NOT SOLD. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE OR BETA LICENSE.
NO AGENT OF HELIOS IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF HELIOS AS SET FORTH HEREIN. HELIOS DOES NOT WARRANT THAT: (A) THE USE OF PROXI AI OR NON-GA SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) PROXI AI WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH PROXI AI OR NON-GA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) PROXI AI AND NON-GA SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN PROXI AI AND NON-GA SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE PROXI AI AND NON-GA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PROXI AI AND NON-GA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HELIOS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
Without limiting the foregoing, Customer understands the responses provided by Proxi AI and/or any Non-GA Services may contain errors and omissions or “hallucinate,” and may be responding to a different question than asked. It is Customer’s sole responsibility to verify the accuracy and relevancy of any Outputs. Helios is not responsible for verifying Customer’s compliance with applicable laws and regulations. Customer is responsible for all decisions made and actions taken as a result of Customer’s use of Proxi AI and the Output.
8. INDEMNIFICATION.
Customer shall defend Helios and its licensors and their respective officers, directors and employees from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Helios of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of Proxi AI other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in Section 8.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Helios providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Helios settle any claim without Customer’s prior written approval. Helios may, at its own expense, engage separate counsel to advise Helios regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
9. PRIVACY.
9.1 Privacy Policy; Personal Data Storage and Processing. Helios shall Process Customer Data in accordance with its privacy policy, available at [•] (the “Privacy Policy”). By default, Personal Data is stored in the United States. Where supported by our third-party service providers and where otherwise in compliance with applicable laws and regulations, Customer may request to have Personal Data stored outside of the United States, and Proxi AI will use commercially reasonable efforts to support such requests. Customer acknowledges that storing Personal Data outside of the United States may affect the performance and availability of Proxi AI, and Helios will not be liable for any adverse impact such storage has on the performance and/or availability of Proxi AI. Customer further acknowledges that Processing of Personal Data will still occur within the United States.
10. CONFIDENTIALITY.
10.1. Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business. Confidential Information of Helios shall include the source code of Proxi AI, the Documentation, and any pricing terms and/or modifications to these Terms negotiated between Helios and Customer. Confidential Information also includes all summaries and abstracts of Confidential Information.
10.2. Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
10.3. Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11. PROPRIETARY RIGHTS.
11.1. Proxi AI. As between Helios and Customer, all right, title and interest in Proxi AI and any other Helios materials furnished or made available hereunder, and all modifications and enhancements thereof, belong to and are retained solely by Helios or Helios’s licensors and providers, as applicable.
11.2. Feedback. All suggestions, ideas and feedback proposed by Customer regarding Proxi AI, including all Intellectual Property Rights in each of the foregoing (collectively, “Feedback”), belong to and are retained solely by Helios or Helios’ licensors and providers, as applicable. Customer hereby irrevocably assigns all of its right, title, and interest in and to Feedback to Helios. To the extent any Feedback cannot be assigned to Helios under applicable law, Customer hereby irrevocably grants to Helios an exclusive, perpetual, irrevocable, fully paid-up, worldwide, transferable, sublicensable (through multiple tiers of sublicensees) license to the non-assignable Feedback, with the right to fully use, practice and exploit such Feedback for any purpose. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Helios those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Helios may reasonably request, to perfect ownership of Feedback. If Customer is unable or unwilling to execute any such document or take any such action, Helios may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable. If Customer has a Beta License, Customer acknowledges that, as a condition to maintaining that Beta License, Helios may require Customer to provide periodic Feedback, at a cadence determined in Helios’ sole discretion, and Customer shall comply with all of Helios’ requests for Feedback during the term of the Beta License.
11.3. Customer Data. Certain features of Proxi AI require Customer to upload to Proxi AI, at no charge to Helios, Customer Data. Customer hereby grants to Helios a limited, non-exclusive, non-transferable, revocable, royalty-free right and license during the term of this Agreement to reproduce, modify, Process and otherwise use Customer Data for purposes of providing and improving Proxi AI, with the right to sublicense such rights to Third Party Offerings and in accordance with Section 3.3 to the extent necessary to provide and improve Proxi AI and to provide any Third Party Offerings. Helios does not guarantee, and is not obligated to verify, authenticate, monitor or edit Customer Data, or any other information or data input into or stored in the Service for completeness, integrity, legality, quality, accuracy or otherwise. To the extent that receipt of the Customer Data requires Helios to utilize any account information from a third-party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Helios hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in these Terms.
11.4. Aggregated Data. Notwithstanding anything else in this Agreement or otherwise, Helios may monitor Customer’s use of Proxi AI and use De-Identified Data as well as data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of Proxi AI (“Aggregated Data”). Customer acknowledges that Helios will be compiling Aggregated Data based on Customer Data inputted into Proxi AI and Customer agrees that Helios may (a) make such Aggregated Data publicly available, (b) use such Aggregated Data to answer other Proxi AI customers’ queries regarding industry or public policy trends, and (c) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement, marketing and other commercial purposes, provided that such data and information does not identify Customer or its Confidential Information.
12. LIMITATION OF LIABILITY.
12.1. No Consequential Damages. NEITHER HELIOS NOR ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF HELIOS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE HELIOS SERVICE, NON-GA SERVICES, OR THE OUTPUT OR THE RESULTS THEREOF. HELIOS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OF PROXI AI, THIRD PARTY OFFERINGS, AND/OR NON-GA SERVICES.
12.2. Limits on Liability. NEITHER HELIOS NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DIRECT, CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO HELIOS UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM. FOR BETA AND EVALUATION LICENSES, NEITHER HELIOS NOR ITS LICENSORS SHALL BE LIABLE FOR AMOUNT EXCEEDING $100.00 USD.
12.3. Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE PROVISIONS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
13. TERM AND TERMINATION.
13.1. Term. The term of these Terms commences on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order Form, Subscription Terms (other than for Evaluation Licenses and Beta Licenses) for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least 90 days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Helios has given Customer written notice of a pricing increase, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then-current Subscription Term. Evaluation Licenses and Beta Licenses will terminate at the end of their respective Subscription Terms unless the parties enter into an Order Form for a new Subscription Term.
13.2. Beta and Evaluation Licenses – Termination for Convenience. Solely with respect to Beta Licenses and Evaluation Licenses, either party may terminate such licenses for convenience at any time effective immediately upon such party’s written notice.
13.3. Termination for Cause. A party may terminate these Terms (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within 60 days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within 30 days after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Customer, Helios shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by Helios, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Helios for the period prior to the effective date of termination.
13.4. Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to Proxi AI shall cease and all licenses granted to Customer hereunder shall terminate; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Helios shall be immediately due and payable by Customer. Upon Customer’s request made within 30 days after the effective date of applicable termination or expiration, Helios shall make any Customer Data stored on Proxi AI available for download by Customer in the format in which it is stored in Proxi AI. After such 30-day period, Helios shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within 10 days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
13.5. Survival. This Section and Sections 1 (Definitions), 2.4, 6 (Fees and Payment), 7 (Representations and Warranties; Disclaimer), 8 (Indemnification), 11 (Proprietary Rights), 12 (Limitation of Liability), 13.4 (Termination for Cause), and 14 (Miscellaneous) shall survive any termination or expiration of these Terms.
14. MISCELLANEOUS.
14.1. Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the addresses set forth below (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2. Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Delaware as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any disputes arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties’ relationship created by these Terms, shall be heard in the state and federal courts located in the State of Delaware and the parties hereby consent to exclusive jurisdiction and venue in such courts.
14.3. Publicity. Helios has the right to reference and use Customer’s name and trademarks and disclose the nature of Proxi AI provided hereunder in each case in Helios business development and marketing efforts, including without limitation Helios’ web site.
14.4. U.S. Government Customers. All software provided to the U.S. Government is provided with the commercial license rights and restrictions described in this Agreement. By installing, copying or using the software, the U.S. Government agrees that the software is a Commercial Item or Commercial Product as defined in the Federal Acquisition Regulation (“FAR”) at 48 C.F.R. 2.101, and as used in 48 C.F.R. Part 12, and is comprised of “commercial computer software” or “commercial computer software documentation” within the meaning of FAR Parts 2 and 12. If acquired by or on behalf of a civilian agency of the U.S. Government, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA, as specified in 48 C.F.R. 12.212 (Computer software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any office within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government License Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision of the contract under which this software is obtained solely with respect to the U.S. Government’s rights in computer software, computer software documentation or technical data related to the software.
14.5. Export. Proxi AI utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that Proxi AI shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using Proxi AI, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Proxi AI may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Helios and its licensors make no representation that Proxi AI is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of Proxi AI, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
14.6. Assignment. Customer shall not assign its rights hereunder or these Terms, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Helios. Any purported assignment in violation of the preceding sentence is null and void. Helios may assign these Terms and any of its rights hereunder, and delegate any of its obligations, without Customer’s consent. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto.
14.7. No Waiver. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.
14.8. Severability. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of these Terms will remain in full force.
14.9. Independent Contractors. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties.
14.10. Entire Agreement. These Terms, including all applicable Order Forms and the Privacy Policy, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Helios expressly rejects any terms contained in any Customer purchase orders or similar Customer-provided documentation, and such terms shall be of no force or effect.
14.11. Force Majeure.Except for your payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.