THESE TERMS OF USE CREATE A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN APIPHANI INC. (“PROVIDER”) AND THE USER OF THE SERVICE ENTERING INTO THIS AGREEMENT (“CUSTOMER”). THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE LUUMEN SOFTWARE, PLATFORM, AND DOCUMENTATION MADE AVAILABLE BY PROVIDER AND AS FURTHER DESCRIBED BELOW (“SERVICE”).
BY CHECKING THE “I ACCEPT” BOX OR BY ACCESSING OR USING THE SERVICE CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
1. The Service
The Service provides customers with actionable insights and operational capabilities for information technology environments through an AI-enabled infrastructure access and terminal platform, including secure remote connectivity, monitoring integrations, vulnerability scanning, workflow automation, and contextual AI assistance.
2. License
(a) License grant
Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during the Term to access and use the Service solely for Customer’s internal business purposes by an employee or contractor of Customer who Customer permits to access and use the Service pursuant to Customer’s license hereunder (“Authorized User”).
(b) Use restrictions
Customer may only use the Service in accordance with the terms of Customer’s applicable subscription tier (“Use Tier”), and shall not use the Service for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Service; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service; (iii) reverse engineer, disassemble, decompile, decode, or duplicate the Services, engage in model extraction, or otherwise attempt to derive or gain access to any source code, algorithm, model, model weights and parameters, or other underlying artificial intelligence technology or component of the Services; (iv) access or use the Services to develop, train, or improve a competing or similar product or service; (v) remove any proprietary notices from the Service; or (vi) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of rights
Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service.
3. Customer responsibilities
(a) Customer is responsible and liable for the systems Customer connects to and operates through the Service (e.g., servers, credentials, and infrastructure).
(b) Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service, and shall cause Authorized Users to comply with such provisions.
4. Use of artificial intelligence
(a) AI technology
Customer may elect to utilize one or more artificial intelligence technologies within the Service (“AI Technologies”). In connection therewith, Customer may provide information, data, text, prompts, or other content to the AI Technologies (“Inputs”) and receive from the Service information, data, text, or other output based on the Inputs (collectively, “Outputs”). By submitting Inputs to the AI Technologies, Customer represents and warrants that Customer has all rights, licenses, and permissions that are necessary for Provider to process the Inputs under this Agreement and to provide the AI Technologies to Customer.
(b) Limitations on Outputs
Customer acknowledges that Outputs are generated automatically by machine learning technology and may be similar to or the same as Outputs provided to other customers, and no rights to any Outputs generated, provided, or returned by the AI Technologies for or to other customers are granted to Customer. Further, Customer acknowledges the limitations applicable to Outputs provided by large language and other AI models, including that (i) Outputs may contain errors or misleading information, (ii) AI models are based on predefined rules and algorithms that can result in repetitive or formulaic content, (iii) AI models may not understand the nuances of language, including slang, idioms, and cultural references, and (iv) data used to train AI models may be of poor quality or biased.
(c) Use of Outputs
By default the AI Technologies require human approval to execute on any Outputs. Customer is solely responsible for (i) evaluating by human review all Outputs for accuracy, completeness, and other factors relevant to Customer’s use before relying on or otherwise executing any Outputs; and (ii) Customer’s decisions, actions, and omissions in reliance or based on the Outputs.
(d) Auto execution
Customer may have the option to enable a feature in the AI Technologies that automatically executes Outputs without human review or confirmation. By enabling this feature, Customer acknowledges and agrees that Customer is assuming all risks associated with the automatic execution of Outputs, including without limitation system outages, software defects, data loss, and security vulnerabilities. Customer is solely responsible for any losses or liabilities resulting from the use of such feature, including establishing appropriate internal safeguards and monitoring.
5. Support
During the Term, Provider shall provide Customer with the support services described within the Service applicable to Customer’s Use Tier.
6. Fees and payment
(a) Fees
The fees applicable to Customer’s Use Tier will be charged to the payment card provided by Customer at the commencement of the first billing cycle. Provider does not process or store any payment information. All payment information is processed and stored by a third-party provider. All fees shall be due and payable in advance. All payments for access to the Service are final. Customer is responsible for providing accurate and current billing, contact and payment information to Provider. Customer represents and warrants that Customer has the authority to use such credit card for purchasing a subscription to the Service. Provider reserves the right to update the fees for the Service at any time. Provider will notify Customer of any price changes by sending an email to the address last designated on Customer’s account. If Customer does not cancel Customer’s subscription prior to the expiration of the subsequent billing cycle, the price changes will become effective as of the subsequent billing cycle. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
(b) Taxes
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
7. Confidential information
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual property ownership; data usage
(a) Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Service; including the telemetry and other technical operational data associated with providing the Service.
(b) Customer Data
Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Inputs, Product Analytics (defined below), and Customer Infrastructure Data (defined below), and other data generated through active terminal interactions or user-initiated actions (e.g., commands run on a system) (collectively, “Customer Data”). Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to (i) reproduce, distribute, and otherwise use and display the Customer Data as may be necessary for Provider to provide the Services to Customer and (ii) unless Customer has opted out in its account, use, modify, and adapt aggregated and anonymized Customer Data to train, develop, adapt, modify, enhance, or improve the Service.
(i) “Product Analytics” means data about how users interact with the Service (e.g., feature usage, sessions, workflows executed) that is used internally to understand user behavior, improve usability, and guide product development.
(ii) “Customer Infrastructure Data” means system-level telemetry collected from Customer’s infrastructure (e.g., CPU, memory, logs, uptime). Customer Infrastructure Data are required to provide real-time visibility, power Outputs, and enable workflows within the Service.
9. Warranty disclaimer
THE SERVICE IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SERVICE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. YOU ACKNOWLEDGE THAT, GIVEN THE NATURE OF THE SERVICES AND AI TECHNOLOGY, OUTPUTS (I) MAY BE INACCURATE OR MISLEADING, AND (II) MAY BE THE SAME AS OR SIMILAR TO OUTPUT THE SERVICES GENERATE FOR OTHER CUSTOMERS.
10. Indemnification
(a) Provider indemnification
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-party Claim”) that the Service, or any use of the Service in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (1) modify or replace the Service, or component or part thereof, to make it non-infringing, or (2) obtain the right for Customer to continue use. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(b) Customer indemnification
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-party Claim based on Customer’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Service in a manner not authorized or contemplated by this Agreement; (iii) modifications to the Service not made by Provider, provided that Customer may not settle any Third-party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-party Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-party Claim or to participate in the defense thereof by counsel of its own choice.
11. Limitations of liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Term and termination
(a) Term
This Agreement shall commence on the date that Customer checks the “I accept” box or otherwise creates and account with the Service and shall remain in effect until the expiration or earlier termination of this Agreement in accordance with its terms (“Term”).
(b) Termination
Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty days after the non-breaching party provides the breaching party with written notice of such breach.
(c) Effect of expiration or termination
Upon expiration or earlier termination of this Agreement, the license granted hereunder will terminate and Customer shall immediately cease using the Service. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival
Sections 5–13 will survive any termination or expiration of this Agreement.
13. Governing law and jurisdiction
This agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any legal suit, action, or proceeding arising out of this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in Boston, Massachusetts, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14. Privacy Policy
Provider complies with its privacy policy available on its website (“Privacy Policy”), in providing the Service. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Service, Customer acknowledges that Customer has reviewed and accepted our Privacy Policy, and Customer consents to all actions taken by Provider with respect to Customer’s information in compliance with the then-current version of Provider’s Privacy Policy.
15. Modifications
Customer acknowledges and agrees that Customer has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Customer will be notified of modifications through notifications or posts on Provider’s website and/or direct email communication from Provider. Customer is responsible for reviewing and becoming familiar with any modifications. Customer’s continued use of the Service after the effective date of the modifications will be deemed acceptance of the modified terms.
16. Export regulation
The Service utilizes software and technology that may be subject to U.S. export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Service or the software or technology included in the Service to, or make the Service or the software or technology included in the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the software or technology included in the Service available outside the US.
17. US Government rights
Each of the software components that constitute the Service and the is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer receives only those rights with respect to the Service as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
18. Miscellaneous
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to [email protected] or Provider’s corporate headquarters address available on Provider’s website and must be delivered either in person, by email, certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from Provider. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Service. Customer agrees that any notices, agreements, disclosures, or other communications that Provider sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by Provider with respect to a breach of this Agreement by Customer does not constitute a waiver and will not limit Provider’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without Provider’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Provider expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.