Terms of Service

1. POLYNOMIC TECHNOLOGY.

1.1. Platform.

Subject to the terms and conditions of this Agreement, Polynomic grants Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, internal use only license during the Term to access and use, on an evaluation basis, Polynomic's artificial intelligence software-as-a-service platform (the "Platform") as further described in the Order.

1.2. Restrictions.

Customer shall not, directly or indirectly, and shall not permit any third party to: (a) modify or create any derivative works based on the Platform or any portion of thereof; (b) distribute, rent, lease, lend, sublicense, transfer, make available to any third party, or provide any third party access to or the benefits of the Platform except as expressly permitted hereunder; (c) reproduce any aspect or feature of the Platform; (d) decompile, disassemble, or reverse engineer the Platform or otherwise attempt to derive from the Platform any underlying algorithms, ideas, structures, techniques or source code not otherwise made available to Customer; (e) use the Platform for purposes of gathering competitive intelligence about Polynomic or the Platform or developing any technology that competes with or is substantially similar to the Platform; (f) share any information pertaining to the Platform, including screenshots or performance metrics with any third party; or (g) otherwise access or use any aspect or feature of the Platform except as expressly permitted herein.

1.3. GenAI Features.

The Platform may enable Customer to use certain features that implement one or more generative artificial intelligence models or tools (the "Generative AI Features"). The Generative AI Features may allow Customer to insert, upload, or otherwise make available text, data, images, or other content (collectively, "Input"), including by connecting Customer's accounts on third-party advertising, marketing, sales, or similar services (each, an "Ad Account"). Based on the Input, Customer may generate and receive as output content such as text, data, metrics, images, or other content (collectively, "Output"). With the exception of the Polynomic Technology, all Output is deemed Customer Data and owned by Customer. Customer acknowledges that, due to the nature of artificial intelligence technology, Output may not be unique and other users of the Platform may receive similar Output from the Platform. Customer agrees not to state or suggest that Output was human-generated or generate any Output for an illegal purpose. If Customer chooses to make any of Customer's information publicly available through the Platform or otherwise, Customer does so at Customer's own risk. Customer acknowledges that the Platform's Output is for guidance only and should not be solely relied upon for decision-making. Customer bears full responsibility for decisions made based on the Platform's Outputs, and Polynomic is not liable for any consequences arising from such decisions. Customer may not provide Input or create Output for which Customer does not have all the rights necessary to grant Polynomic the license described above.

2. DATA.

2.1. Customer Data.

Customer retains all rights, title, and interest in the Input, Output, Ad Accounts, Ad Account Data, brand assets, logos, and all information, data, and other content that is submitted, posted, transmitted, or otherwise made available by or on behalf of Customer through the Platform ("Customer Data"). Customer hereby grants Polynomic a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers), irrevocable right and license to access, use, store, reproduce, display, modify, adapt, publish, translate, create derivative works of, distribute, publicly perform, publicly display, edit, create derivative works from, and otherwise process the Customer Data to the extent necessary to provide the Platform, including, without limitation, for the purpose of hosting, operating, improving, creating, testing, and otherwise making available the Platform and other Polynomic products and services, including by training artificial intelligence models, provided that Polynomic shall not identify Customer as the source of any Customer Data. Nothing in this Agreement shall grant to Polynomic any rights in the Customer Data except as expressly authorized in writing by Customer.

2.2. Data from Ad Accounts.

By connecting one or more Ad Accounts to the Platform, Customer hereby agrees Polynomic may access such Ad Account, as is permitted under the applicable terms and conditions that govern such Ad Account. Customer represents that Customer is entitled to grant Polynomic access to such Ad Accounts (including, but not limited to, for use for the purposes described herein) without breach by Customer of any of the terms and conditions that govern such Ad Account and without obligating Polynomic to pay any fees or making Polynomic subject to any usage limitations imposed by the applicable third-party service provider. By granting Polynomic access to any Ad Accounts, Customer understands that Polynomic may access, make available and store (if applicable) any information, data, text, software, photographs, graphics, messages, tags and other materials accessible through the Platform that Customer provided to and stored in Customer's Ad Account (collectively, "Ad Account Data") so that it is available on and through the Platform via Customer's account. All Ad Account Data shall be considered to be Customer Data for all purposes of this Agreement.

2.3. Usage Data.

Customer agrees that Polynomic may collect data and information related to Customer's use of the Platform and the performance, availability, integrity, and security of the Platform, including traffic, volumetrics, clickthrough or clickstream data, feature usage, and errors (collectively, "Usage Data"). Customer acknowledges that, as between Polynomic and Customer, Polynomic owns all right, title, and interest, including all associated intellectual property rights, in and to the Usage Data. Polynomic may use Usage Data as necessary to provide, maintain, develop, and improve the Platform and other Polynomic technology. Notwithstanding anything to the contrary herein, Polynomic's use of Usage Data shall not identify Customer as the source of the Usage Data.

3. OWNERSHIP.

Except with respect to Customer Data, all right, title, and interest in and to the Platform and Usage Data, including all intellectual property rights incorporated or embodied therein (collectively, "Polynomic Technology"), is owned exclusively by Polynomic and its licensors. Polynomic may, at any time and in its sole discretion, replace, modify, alter, improve, enhance, or change any of the Polynomic Technology. Nothing herein grants or transfers to Customer any right, title, or ownership interest in or to any Polynomic Technology or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to Polynomic or the Polynomic Technology, except for the rights expressly set forth herein.

4. FEEDBACK.

Customer agrees to provide any feedback, including, without limitation, any information about errors, problems, defects, or suggestions for changes and improvements to the Polynomic Technology to Polynomic that Polynomic may request during the Term from time to time (collectively, "Feedback"). Additionally, Customer will provide sufficient Feedback at Polynomic's request to enable Polynomic to draft and publish a case study relating to Customer's use of the Platform (the "Case Study"). Customer shall provide prior written approval of the final version of the Case Study (not to be unreasonably withheld or delayed) before such Case Study may be published. Subject to the foregoing, Customer acknowledges and agrees that any Feedback that Customer discloses or submits to Polynomic regarding the Polynomic Technology and any information or data that Polynomic derives, collects, or observes based on the performance, operation, and use of the Polynomic Technology may be used, disclosed, or exploited by Polynomic on a perpetual and irrevocable basis for the purpose of providing, administering, improving, developing and distributing in any form or media the Platform and Polynomic's products and services. Customer understands that Polynomic may treat Feedback as nonconfidential, provided that Polynomic will not associate Customer with such Feedback without Customer's prior written consent.

5. FEES; TAXES

5.1. Fees.

In consideration for the access rights granted to Customer, Customer will pay to Polynomic the fees identified on the applicable Order (the "Fees"). Polynomic reserves the right (in addition to any other rights or remedies Polynomic may have) to suspend Customer's access to the Platform if any Fees are more than ten (10) days overdue until such amounts are paid in full. Customer will maintain complete, accurate, and up-to-date Customer billing and contact information at all times.

5.2. Taxes.

The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Polynomic's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees or the license of the Platform to Customer. Customer will make all payments of Fees to Polynomic free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Polynomic will be Customer's sole responsibility, and Customer will provide Polynomic with official receipts issued by the appropriate taxing authority, or such other evidence as the Polynomic may reasonably request, to establish that such taxes have been paid.

6. CONFIDENTIAL INFORMATION.

Each party agrees to exercise no less than reasonable care to maintain the confidentiality of Confidential Information disclosed (including the terms of this Agreement) by the other party and to only use such Confidential Information in connection with exercising its rights or performing its obligations hereunder. For purposes of this Agreement, "Confidential Information" means: (a) any information disclosed, directly or indirectly, by or on behalf of one party to the other party pursuant to this Agreement that is designated as "confidential," or in some other manner to indicate its confidential nature; and (b) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. For purposes of this Agreement, the Polynomic Technology and the function of the Platform are the Confidential Information of Polynomic and Customer Data is the Confidential Information of Customer. If any Polynomic Technology is installed or otherwise deployed on any of Customer's systems, Customer shall delete all such Polynomic Technology at the end of the Term.

7. NO WARRANTIES.

CUSTOMER AGREES THAT THE POLYNOMIC TECHNOLOGY IS BEING PROVIDED ON AN EVALUATION BASIS ONLY. ACCORDINGLY, THE POLYNOMIC TECHNOLOGY IS LICENSED AND PROVIDED "AS-IS" AND ON AN "AS AVAILABLE" BASIS. PROMPT AI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE POLYNOMIC TECHNOLOGY, THE OPERATION THEREOF, AND CUSTOMER'S ACCESS TO AND USE THEREOF. POLYNOMIC SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. POLYNOMIC DOES NOT WARRANT THAT THE POLYNOMIC TECHNOLOGY WILL BE ERROR-FREE, THAT THE POLYNOMIC TECHNOLOGY OR ANY RESULTS THEREFROM WILL BE ACCURATE, OR THAT THE POLYNOMIC TECHNOLOGY WILL WORK WITHOUT INTERRUPTION. CUSTOMER AGREES THAT POLYNOMIC WILL NOT BE RESPONSIBLE FOR ANY LOSS OF SUBMITTED DATA OR ANY FAILURE TO MAINTAIN, STORE, OR BACKUP ANY SUBMITTED DATA IN CONNECTION WITH THIS AGREEMENT.

8. TERM AND TERMINATION.

This Agreement shall commence upon the Effective Date and continue for the duration identified on the Order unless otherwise terminated as set forth herein (the "Term"). 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 remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Each party shall promptly destroy or return the Confidential Information of the other party promptly after termination or expiration of this Agreement. Sections 1.2 (Restrictions), 2 (Data) 3 (Ownership), 4 (Feedback) 5.2 (Taxes), 6 (Confidential Information), 7 (No Warranties), 8 (Term and Termination), 9 (Limitation of Liability), 10 (Injunctive Relief), and 11 (Miscellaneous) shall survive any termination or expiration of this Agreement.

9. LIMITATION OF LIABILITY.

EXCEPT FOR BREACHES OF SECTION 6 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES HEREUNDER IN EXCESS ONE HUNDRED U.S. DOLLARS ($100 USD), INCLUDING FOR ANY DAMAGES RELATING TO LOST PROFITS, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THIS IS A REASONABLE ALLOCATION OF RISK.

10. INJUNCTIVE RELIEF.

Each party agrees that any violation or threatened violation of this Agreement could cause irreparable harm to the other party, entitling the other party to seek injunctive relief in addition to all other remedies without obligation of proving damages or posting bond.

11. MISCELLANEOUS.

Each party shall not assign or otherwise transfer this Agreement without the prior written consent of the other party, except that either party may transfer or assign this Agreement without such consent to its successor in interest by way of merger, acquisition, corporate reorganization, change of control or similar such transaction, or sale of all or substantially all of its assets or similar transaction or series of transactions. All assignments in violation of this prohibition shall be null and void. The terms of this Agreement will be binding upon permitted assignees. This Agreement is the entire agreement between the parties relating to the subject matter hereof and may only be modified in a writing signed by both parties. Neither party has any obligation under this Agreement to purchase, license or sell any product or service supplied by the other party. The parties are independent contractors, and do not intend that any agency or partnership relationship be created between them by this Agreement. This Agreement shall be governed by the laws of the State of California without reference to conflicts of law principles. In any dispute arising out of this Agreement, Polynomic and Customer each consent to the exclusive jurisdiction of the state and/or federal courts of San Francisco, California and agree to bring any actions arising out of this Agreement in such courts. If any provision or clause of this Agreement is held unenforceable, the remainder of this Agreement will continue in full force and effect.