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Terms & Conditions
These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Fabi, Inc., a Delaware corporation (“Fabi”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms and SOWs (each as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form or SOW on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Fabi Product (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
1. Definitions
We collect information directly from you, from your use of our Services (the Fabi solution), and from associated third parties.
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Fabi Product accounts.
“Documentation” means Fabi’s then-current standard usage documentation for the Fabi Product.
“Effective Date” means the date of the initial Order Form entered into between Customer and Fabi.
“Order Form” means an ordering document or online order entered into between Customer and Fabi, or online ordering flow completed by Customer, in each case that sets forth the applicable Fabi Product to which Customer is subscribing, pricing therefor (including in relation to overages), permitted number of users and subscription term, and that references these Terms and Conditions.
“Fabi Product” means the SaaS-based AI platform designed for developers and developed by Fabi, as further described in the applicable Order Form.
“Third Party Platform” means any product, add-on or platform not provided by Fabi that Customer elects to use with the Fabi Product.
“User” means anyone that Customer allows to use its accounts for the Fabi Product, consisting of (a) Customer’s employees and contractors (solely for purposes of providing services to Customer) and (b) others if permitted in the Documentation or an Order Form.
2. Fabi Product
2.1 Provision of Fabi Product. Subject to this Agreement, Fabi will make the Fabi Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Fabi Product for its internal business purposes. Customer may permit Users to use the Fabi Product on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users’ actions through the Fabi Product and their compliance with this Agreement.
2.2. Data Security
a. Fabi will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Fabi will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Fabi security page located at https://www.fabi.ai/security (the “Security Page”) posted as of the Effective Date (and as the Security Page may be updated by Fabi in a manner that does not materially decrease the applicable protections).
2.3 Customer Responsibilities
a. Customer acknowledges that Fabi’s provision of the Fabi Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.
b. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Fabi Product and notify Fabi promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Fabi Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Fabi Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Fabi will have no liability for such failure (including under any service level agreement).
c. Customer will not use the Fabi Product to transmit or provide to Fabi any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form. With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
3. Fees
3.1 Fees. Customer will pay Fabi the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Fabi within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Fabi may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.
3.2 Late Payment. Fabi may suspend access to the Fabi Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Fabi has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Fabi.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Fabi. Customer will not withhold any taxes from any amounts due to Fabi.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Fabi exclusively owns all right, title and interest in and to the Fabi Product, System Data and Fabi’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, output produced specifically for Customer via the use of the Fabi Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Fabi regarding the Fabi Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Fabi Product.
4.2 Feedback. Customer may from time to time provide Fabi suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Fabi Product. Fabi will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Fabi will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Fabi will not publicly identify Customer as the source of Feedback without Customer’s permission.
4.3 Product Improvement and Aggregated Statistics. Customer further agrees that, notwithstanding anything herein, Fabi has the right to aggregate, collect, retain and analyze Customer Data and other information relating to the performance of the Fabi Product and will be free (during and after the term hereof) to (i) use such data and other information to [provide and] improve Fabi’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
5. Confidentiality; Restrictions
5.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
5.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Fabi Product; (b) attempt to probe, scan or test the vulnerability of the Fabi Product, breach the security or authentication measures of the Fabi Product without proper authorization or wilfully render any part of the Fabi Product unusable; (c) use or access the Fabi Product to develop a product or service that is competitive with Fabi’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Fabi Product or otherwise offer the Fabi Product on a standalone basis; or (e) otherwise use the Fabi Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
6. Warranties and Disclaimers
6.1 Mutual. Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Fabi Product.
6.2 Fabi. Fabi warrants that the Fabi Product will perform materially as described in the Documentation and Fabi will not materially decrease the overall functionality of the Fabi Product during the applicable subscription term (the “Performance Warranty”). Fabi will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Fabi fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Fabi Product in which case Fabi will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term (for the Performance Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Fabi Product. These procedures are Customer’s exclusive remedies and Fabi’s sole liability for breach of the Performance Warranty.
6.3 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Fabi to use the same as contemplated hereunder.
6.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Fabi DOES NOT REPRESENT OR WARRANT THAT THE Fabi PRODUCT WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE Fabi PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. Fabi IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH.
6.5 No-Charge Products. Fabi may offer certain Fabi Products at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”). Customer’s use of No-Charge Products is subject to any additional terms that Fabi may specify. Except as otherwise set forth in this Section, these Terms and Conditions apply to No-Charge Products. Fabi may modify or terminate Customer’s right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, To the maximum extent permitted by applicable law, Fabi disclaims all obligations, warranties and liabilities with respect to No-Charge Products, including any service level OR indemnity obligations, AND Fabi’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
7. Indemnification
7.1 Indemnity by Fabi. Fabi will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Fabi Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Fabi) in connection with any such Claim; provided that (a) Customer will promptly notify Fabi of such Claim, (b) Fabi will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Fabi may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Fabi in connection therewith. If the use of the Fabi Product by Customer has become, or in Fabi’s opinion is likely to become, the subject of any claim of infringement, Fabi may at its option and expense (i) procure for Customer the right to continue using and receiving the Fabi Product as set forth hereunder; (ii) replace or modify the Fabi Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Fabi will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Fabi Product by Customer not in accordance with this Agreement; (C) modification of the Fabi Product by or on behalf of Customer; (D) Customer Data, or (E) the combination, operation or use of the Fabi Product with other products or services where the Fabi Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Fabi’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
7.2 Indemnification by Customer. Customer will defend Fabi against any Claim made or brought against Fabi by a third party arising out of the Excluded Claims, and Customer will indemnify Fabi for any damages finally awarded against Fabi (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Fabi will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Fabi’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Fabi of all liability) and (c) Fabi reasonably cooperates with Customer in connection therewith.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR loss of use, lost profits or interruption of business, even if informed of their possibility in advance, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”).
9. Termination
9.1 Term. The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to Fabi within fourteen (14) days of the date of the initial Order Form.
9.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.3 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
10. General
10.1 Publicity. Customer agrees that Fabi may refer to Customer’s name and trademarks in Fabi’s marketing materials and website; however, Fabi will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). If Customer does not agree to Fabi’s use of Customer’s name or trademark in Fabi’s marketing materials, Customer may opt-out of such use by providing written notice to Fabi within fourteen (14) days of the date of the initial Order Form.
10.2 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.3 Amendment. Fabi reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) Fabi may specify that such modifications become effective during Customer’s then-current subscription term. If the effective date of such modifications is during Customer’s then-current subscription term and Customer objects to the modifications, then (as Customer’s exclusive remedy) Customer may terminate the affected Order Form upon written notice to Fabi, and Fabi will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term. To exercise this right, Customer must provide Fabi with notice of its objection and termination within thirty (30) days of Fabi providing notice of the modifications. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
10.4 Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Fabi Product account. Notices to Fabi must be sent to the following:
616 58th St.
Oakland CA, 94609
Attn: Legal
10.9 Entire Agreement. This Agreement (consisting of these Terms and Conditions and each Order Form and SOW) comprises the entire agreement between Customer and Fabi with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Fabi, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of a conflict between these Terms and Conditions and an Order Form or SOW, the terms of the Order Form will control.
10.10 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.11 Government Terms. Fabi provides the Fabi Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Fabi Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Fabi Product was developed fully at private expense.
10.12 Interpretation. For purposes hereof, “including” means “including without limitation”.
