Checksum AI, Inc.

Master Subscription Agreement

(May 2024)

BY ACCEPTING THIS MASTER SUBSCRIPTION AGREEMENT (“MSA”), BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THIS MSA, OR (3) OTHERWISE USING SERVICES ON OR RELATED TO APP.CHECKSUM.AI, CUSTOMER AGREES TO THE TERMS OF THIS MSA WITH CHECKSUM AI, INC. (“CHECKSUM”). IF THE INDIVIDUAL ACCEPTING THIS MSA IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS MSA, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS MSA DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS MSA, SUCH INDIVIDUAL MUST NOT ACCEPT THIS MSA AND MAY NOT USE THE SERVICES. THIS MSA WILL BE DEEMED EFFECTIVE ON THE DATE IT IS ACCEPTED BY CUSTOMER AND ORDER FORM (AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”).

1. Agreement and Term. The products and online services (collectively, “Services”) made available by Checksum pursuant to this Agreement may be described in and purchased by Customer under an order form(s) signed by both parties or purchased by Customer via a Checksum-provided online ordering process (collectively, “Order Forms”). Any product and online services made available by Checksum to Customer free of charge or under a free trial shall be deemed Services governed by this Agreement. Customer and Checksum will adhere to the Data Protection Addendum located at [Insert link] (the “DPA”), and entrance into this MSA shall constitute entrance into the DPA. “Agreement” includes this Agreement together with all Order Forms and the DPA. The “Term” of this Agreement begins on the Effective Date and ends when all Order Forms have expired or terminated.
2. Use of Services. During the Term and subject to the terms of this Agreement, Checksum grants Customer a non-exclusive, non-transferable (a) right to access and use the Services set forth in an Order Form and (b) license, with respect to any tags, agents, code, or other software or technology Checksum provides to Customer, to install and use in the intended manner (in object code) on the Customer property(ies) for the purposes provided in connection with Customer’s use of the Services.
3. Checksum Responsibilities.
   1. Checksum will provide the Services in accord with this Agreement and the laws and regulations applicable to Checksum’s provision of its Services to its customers generally. Checksum is responsible for its personnel’s and agents’ compliance with Checksum’s obligations under this Agreement.
   2. Checksum will use commercially reasonable efforts to make its online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Checksum will inform Customer in advance), and (b) unavailability caused by circumstances beyond Checksum’s reasonable control.
   3. Checksum will maintain appropriate administrative, physical and technical safeguards for the protection of Customer Data (defined below), including measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer’s personnel). Thirty days after termination or expiration of this MSA, Checksum will have no obligation to maintain or provide any Customer Data, and will thereafter delete all Customer Data and Customer Confidential Information from its systems.
4. Customer Responsibilities.
   1. In its use of the Services, Customer will comply with this Agreement (including any usage limits specified in Order Forms) and all applicable laws and regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Checksum promptly of any such unauthorized access or use. Customer is responsible for its personnel’s and agents’ compliance with Customer’s obligations under this Agreement.
   2. Customer will not (a) make any part of the Services available to, or use the Services for the benefit of, any third party; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services; (c) modify, copy or create derivative works of the Services (or any part thereof); (d) disassemble, reverse-engineer or decompile the Services; (e) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (f) use the Services or any Third-Party Application to store or transmit materials that are unlawful, misleading, libelous, obscene, hateful or violative of others’ privacy rights; (g) introduce viruses or other malware to a Third-Party Application or the Services, Checksum’s systems or end users; or (h) except to the extent permitted by applicable law, access the Services to build a competitive product or service. Customer will not use the Services or any Third-Party Application in a manner that violates its agreement with any third party or could reasonably be expected to damage the Services or Third-Party Application or reflect unfavorably on the reputation of Checksum or its partners. Customer will not export, re-export, or transfer the Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.
   3. To help enable the efficient provisioning and operations of the Services, Customer and its personnel will reasonably cooperate with Checksum and its personnel, including as applicable, providing information as to Customer requirements and, access to Customer’s environment or Third-Party Application instance.
5. Privacy.
   1. Each party will conspicuously post and comply with a legally sufficient privacy notice on its properties where data is collected and used in association with the Services. The privacy notice must accurately describe the party’s practices relating to data collection, sharing and use.
   2. Customer is responsible for the accuracy, quality and legality of Customer Data (as defined below),, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services or any Third-Party Application. Customer will ensure that all necessary rights and permissions and a lawful basis are established for the transfer and/or use and processing of Customer Data in connection with the Services or the applicable Third-Party Application in compliance with all applicable laws and regulations.
6. Data and Proprietary Rights.
   1. Except as set forth in this Agreement, as between Checksum and Customer, Customer owns all right, title and interest (including all intellectual property rights) in all data input into the Services by or on behalf of Customer (“Customer Data”). Checksum may only use Customer Data to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement and to build or improve Checksum’s products, services, and offerings.
   2. Except as set forth in this Agreement, as between Checksum and Customer, Checksum owns all right, title and interest (including all intellectual property rights) in the Services, including its machine learning; all the data within the Services, including system performance metrics, except for Customer Data (collectively, “Checksum Data”); and any future developments, derivatives and enhancements to the Services. Customer may only use Checksum Data in connection with using the Services. Customer acknowledges that, as Services are provided to Customer and to Checksum’s other customers, the Services and the underlying algorithms are engaged in continual machine learning, and that the results and output of such learning are owned solely by Checksum. Checksum will not be restricted from improving its services on the basis of general learning and know-how gained from the provision of the Services to Customer and Checksum’s other partners. Checksum may use any suggestions or feedback perpetually and irrevocably, without accounting, attribution or compensation.
   3. Notwithstanding anything to the contrary, Checksum may collect, produce, use, or retain aggregated or other deidentified data related to or generated from Customer’s use of the Services or Customer Data, provided that such data is not reasonably capable of identifying Customer or any individual consumer. Checksum retains all right, title and interest in and to such data.
   4. No jointly owned intellectual property is created hereunder.
7. Third-Party Applications. The Services may offer features designed to interoperate with third party software applications and services including Customer’s cloud infrastructure (“Third-Party Applications”). If Customer chooses to use a Third-Party Application with a Service, Customer grants Checksum permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Service. Checksum cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. Checksum is not responsible for any act or omission by a Third-Party Application, including, without limitation, any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider. If Customer receives notice that a Third-Party Application must be removed, modified or disabled in connection with applicable laws or third-party rights, Customer will promptly do so to the extent Customer has control to do so. If Customer does not do so, or if Checksum reasonably believes that a violation of applicable laws or third-party rights is likely to occur or continue, Checksum may disable the Services’ ability to interoperate with such Third-Party Application. Customer will comply with the terms of service or similar policies of any Third-Party Application with which Customer uses the Services.
8. Payment, Taxes, and Renewal.
   1. Customer will pay all agreed upon fees charged to its account or as otherwise specified in each Order Form. Fees are payable in US Dollars. Invoiced fees are due within 30 days of the invoice date. Customer authorize Checksum and its third-party payment processor(s) to charge the payment method provided on Customer’s account on an agreed-upon periodic basis, but Checksum may reasonably change the date on which the charge is posted. Checksum reserves the right to charge interest on late payments at the lower of 1.5% of the outstanding balance per month, or the maximum permitted by law. Checksum’s fees do not include any present or future taxes, levies, fees or duties of any kind (“Taxes”). Except for any Tax that Checksum has charged to Customer, Customer is responsible for remitting all Taxes based on or arising from this Agreement (other than Taxes based on Checksum’s net income), without setoff or deduction from the fees. If Checksum is held responsible for such Taxes, Customer will reimburse Checksum for such payments. Payments are nonrefundable except as provided in this Agreement.
   2. Any price changes will be effective 14 days after they are communicated or posted. Pricing for any annual renewal term may increase by up to 5% above the applicable pricing in the prior term, unless Checksum provides Customer notice of different pricing at least 30 days prior to the applicable renewal term.
9. Term, Termination and Suspension. The term of this Agreement will commence upon the earlier of your acceptance of this Agreement or the date you first use the Services, and will remain in effect until terminated pursuant to this Section. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. If Customer did not initially purchase Services for a committed duration, then Customer may terminate this Agreement at any time by deleting its account. For clarity, Services purchased under an Order Form are for a committed term unless otherwise expressly set forth therein. Either party may terminate this Agreement and any Order Form immediately if (a) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) the other party is in material breach of this Agreement, has been given notice of such material breach, and has failed to cure within 30 days (or 5 days in the case of failure to pay fees as described in this Agreement). If this Agreement or an Order Form is terminated for Customer’s uncured breach, Customer will promptly pay any minimum amounts that would have been due for the full duration of the Term as it existed prior to the early termination. If Services are provided free of charge, then Checksum will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period specified on the Order Form, (b) the start date of any purchased Service subscriptions ordered by Customer for Service(s) subject to the free trial, or (c) termination by Checksum in its sole discretion. Checksum may suspend access to and use of the Services if Checksum reasonably believes that Customer’s continuing use of the Services may cause risk of litigation or otherwise be harmful to Checksum. Upon the termination or expiration of this Agreement, Customer’s right to use the Services will terminate, and Customer will promptly return (or at Checksum’s election, delete) Checksum’s Confidential Information (including any Checksum Data). All provisions of this Agreement that by their nature should survive termination shall survive (including, without limitation, all outstanding payment obligations).
10. Confidentiality. “Confidential Information” means information that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the type of information. Confidential Information does not include information that the receiving party can demonstrate (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality or (d) is independently developed without use of the disclosing party’s Confidential Information. The receiving party may use the disclosing party’s Confidential Information only as permitted under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information. The receiving party may share the disclosing party’s Confidential Information with its employees, agents and contractors, and in the case of Checksum with a Third-Party Application provider, who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement and provided that a party that makes a permitted disclosure will remain responsible for the recipient’s compliance with this section. If compelled to do so by law, the receiving party may disclose the disclosing party’s Confidential Information as long as it provides reasonable prior notice to the disclosing party (unless legally prohibited). The terms of the Agreement will be Confidential Information of Checksum (but Customer may disclose this Agreement to its professional advisors and as required by law).
11. Mutual Indemnity.
    1. Checksum will indemnify, defend and hold harmless Customer and its officers, directors, employees and representatives from, to the extent payable to unaffiliated third parties, any actual, out of pocket liability or expense (including reasonable attorneys’ fees) (“Liabilities”) from any third-party claim that the Services in the form made available by Checksum infringe such third-party’s intellectual-property rights. Customer will indemnify, defend, and hold harmless Checksum and its officers, directors, employees and representatives (collectively, “Checksum Parties”) from any actual, out of pocket Liabilities from any third-party claim arising out of or from (i) Customer Data or any other Customer information or materials; (ii) Customer’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party; or (iii) any Third-Party Application. Each party’s indemnification obligations are conditioned on (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve the indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) the indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with the indemnitor, at the indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
    2. Checksum will have no obligation for claims arising out of or from (a) Services that are modified by Checksum in compliance with Customer’s specifications, where the cause of action would not have arisen but for such modification, (b) the combination of the Services with products or services not supplied by Checksum, where the cause of action would not have arisen but for such combination, (c) the unauthorized adaptation or modification of the Services, where the cause of action would not have arisen but for such adaptation or modification, (d) Customer’s failure to follow instructions provided by Checksum which would have cured the cause of action, provided that following such instructions would not have caused Customer substantial, additional cost, (e) use of the Services other than as described in the Agreement, (f) Customer’s breach of this Agreement, (e) Customer’s continued use of a version of the Services other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used or (f) free Services. If any of the subsections above apply, Customer will indemnify, defend and hold harmless the Checksum Parties from and against any Liabilities from such claims.
    3. If the Services are held in a suit or proceeding to infringe any intellectual-property or other rights of a third party, or Checksum reasonably believes that it is likely to be found to do so, then Checksum may, at its sole cost, expense and option, either (a) procure the right to continue using the Services or (b) modify the Services so that they become non-infringing without affecting the basic functionality of the Services; provided, however, that if (a) and (b) are not practicable, Checksum may, in its sole discretion, terminate this Agreement with respect to the applicable portion of the Services by giving Customer 30 days’ written notice, upon which termination Checksum will refund the portion of any prepayment that reflects the remaining subscription term.
12. DISCLAIMER.
    1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CHECKSUM PROVIDES ALL SERVICES AND CHECKSUM DATA “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. EXCEPT FOR CHECKSUM BEING RESPONSIBLE DURING THE TERM FOR MAINTAINING THE SECURITY OF ANY ACCOUNT CREDENTIALS REQUIRED BY CHECKSUM AND PROVIDED TO IT BY CUSTOMER IN CONNECTION WITH THE SERVICES, CHECKSUM IS NOT RESPONSIBLE FOR THE SECURITY OF CUSTOMER’S INFRASTRUCTURE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. CHECKSUM DOES NOT WARRANT THE SERVICES WILL BE UNINTERUPPTED OR ERROR FREE.
    2. CUSTOMER ACKNOWLEDGES THAT DUE TO THE NATURE OF THE SERVICES AND ARTIFICIAL INTELLIGENCE GENERALLY, OUTPUT FROM THE SERVICES MAY NOT BE UNIQUE AND OTHER USERS MAY RECEIVE SIMILAR CONTENT FROM OUR SERVICES. OUTPUT GENERATED FOR OTHER USERS ARE NOT CONSIDERED YOUR OUTPUT. ANY ASSIGNMENT OF OUTPUT, IF ANY, DOES NOT EXTEND TO OTHER USERS’ OUTPUT OR ANY CONTENT DELIVERED AS PART OF A THIRD PARTY OFFERING.
13. LIMITATION OF LIABILITY.
    1. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACHES OF SECTION 10 OF THIS AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND (B) EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATION TO PAY ANY MINIMUM FEES, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (I) AMOUNT PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE AND (II) ONE THOUSAND DOLLARS (USD $1,000.00). THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
    2. CERTAIN ASPECTS OF THE SERVICES MAY INVOLVE ARTIFICIAL INTELLIGENCE OR MACHINE LEARNING (“AI FUNCTIONS”). CUSTOMER ACKNOWLEDGES THAT THE AI FUNCTIONS ARE A RAPIDLY EVOLVING FIELD. WHILE CHECKSUM IS ALWAYS WORKING TO IMPROVE ITS AI FUNCTIONS, DUE TO THE PROBABILISTIC NATURE OF THE AI FUNCTIONS, THE SERVICES MAY PROVIDE INACCURATE OUTPUT OR OTHERWISE NOT ALWAYS PRODUCE THE INTENDED RESULTS. AS SUCH, CUSTOMER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY CHECKSUM WITH RESPECT TO (AND CHECKSUM WILL HAVE NO LIABILITY WITH RESPECT TO) THE OUTPUT (OR ANY PARTY’S USE THEREOF) OF CHECKSUM’S AI FUNCTIONS.
14. Logo Use. Customer agrees that Checksum may use Customer’s name and logo on Checksum’s web site and in Checksum promotional and marketing materials.
15. General.
    1. Assignment. Customer will not assign or transfer this Agreement (in whole or part). Any attempt to transfer or assign this Agreement except as expressly authorized above will be null and void. Checksum may freely assign this Agreement.
    2. Force Majeure. Checksum will not liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of Checksum, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, supply chain issues, issues with Checksum’s providers (such as its hosting provider), or refusal of a license by a government agency.
    3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
    4. Notice. All notices to Customer may be provided by Checksum via email or account notification. Any legal notices to Checksum must be sent to Checksum AI, Inc., 548 Market St #62319, San Francisco, CA 94104-5401. In addition, legal notices must also be sent to legal@checksum.ai (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
    5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be updated by Checksum by posting it here []. If Customer does not agree to any amendment, its sole remedy is to terminate use of the Service within thirty (30) days from receipt of the amendment notice (otherwise Customer will be bound by the updated Agreement). If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically.