Last Updated: 2023-11-27
Table of Contents
1. Introduction
2. Definitions
3. Intellectual Property Rights
4. Your Use of the Services
5. Fees and Payment Terms
6. Security of Customer Personal Information
7. Confidential Information
8. Representations, Warranties, and Disclaimer
9. Indemnification
10. Limitations of Liability
11. Disputes
12. Term, Termination, and Survival
13. General
1. Introduction
Seek AI Inc. (“we,” “us,” “ours,” or “Seek AI”) provides intelligent software services (the “Services”). These Seek AI Terms of Service are a binding legal commitment between us and the organization that orders the Services (“you,” “your,” “yours,” or “Customer”) from us through an order form (“Order Form”). Sometimes in these Seek AI Terms of Service we call you and us a “party” or together, the “parties.”
Effective upon ordering any Services through an Order Form, these Seek AI Terms of Service, together with any Order Form, constitute the “Agreement” between you and us.
2. Definitions
These are some defined terms that are used in this Agreement. There are other defined terms throughout the Agreement. You can tell if a term is defined if it has quotation marks around it. Except for when we refer to you/your/yours, us/we/ours, or party/parties, defined terms are capitalized when used again in the Agreement.
2.1 “Aggregated Data” means any data or data compilations aggregated, created, or derived by Seek AI from Customer Data or the use of the Services or the Platform by Customer, Customer Users, or End Users that has been anonymized or deidentified.
2.2 “Applicable Law” means any law that applies to you or us in a given circumstance, this includes laws, regulations, court orders, and arbitration determinations and agreements.
2.3 “Authorized Uses of Customer Data” means the rights you grant to us under this agreement to use Customer Data, and the use of Customer Data as required by law.
2.4 “Customer Application” means any software application or service that you make available to your End Users that interfaces with the Services. 2.5
2.5 “Customer Data” means the data and data compilations you provide or make available to us in connection with your use of the Services and the Platform at any time, including data you provide or make available to us from Customer Users and End Users.
2.6 “Customer User” means each user that you allow to access and use the Services on your behalf, such as your employees or consultants.
2.7 “End User” means any user of any Customer Application (excluding Customer Users).
2.8 “Feedback” means any suggestion, enhancement request, recommendation, correction, change or other feedback regarding the Services, the Platform, or the Seek AI Data, including any feature or function of them, transmitted or communicated to Seek AI by any means.
2.9 “Platform” means the electronic systems and internet sites of Seek AI, including https:/app.seek.ai/ and others, and through which we offer and provide the Services.
2.10 “Seek AI Data” means all data and data compilations created, derived, owned, or licensed by Seek AI, including Aggregated Data. 2.11
2.11 “Service Limit” means any limitation on your use of or access to the Services or the Platform as set forth in an Order Form or reasonable policy set by Seek AI, such as limitations on number of users or API calls.
3. Intellectual Property Rights
3.1 Our intellectual property rights
Between you and us, we own all right, title, and interest to the Services, the Platform, and the Seek AI Data (collectively, “Seek AI Property”), all components and derivative works of the Seek AI Property, and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the Seek AI Property. We reserve all rights in the Seek AI Property not expressly granted to you in this Agreement. You acquire no ownership interest, derivative work, or component of the Seek AI Property through your use of it. You are not granted right, title, or interest to use any trademark, service mark, logo, or trade name of Seek AI under this Agreement.
3.2 Your ownership of Customer Data; Our licensed and authorized use of Customer Data
Between you and us, you own the Customer Data and reserve all rights in the Customer Data not expressly granted to us in this Agreement. You grant us a non-exclusive, royalty-free, worldwide license to access, store, process, use, copy, modify, translate, display, publish, disclose, distribute, transfer, and export Customer Data for sole purposes of providing the Services to you. We acquire no ownership interest in Customer Data.
3.3 Aggregated Data.
You grant us a non-exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide license to access, store, process, use, copy, modify, translate, disclose, distribute, transfer, sublicense, and export Customer Data for the purposes of aggregating, collecting, compiling, or creating the Aggregated Data (collectively, the “Authorized Uses of Customer Data”). While Aggregated Data remains your Customer Data, You agree that we have no obligation to provide it to you, and you grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Aggregated Data to test, improve, and operate the Platform and Services.
3.4 Feedback.
We encourage you to submit Feedback to us, but you have no obligation to do so. We use Feedback to improve the Platform for all our users. To enable this, you grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback to test, improve, and operate the Platform and Services. To the extent Feedback contains your confidential information, we shall not use the Feedback in a way that discloses you or any individual in relation to the Feeback. We agree that any Feedback is provided by you is AS-IS.
4. Your Use of the Services
4.1 Your licensed and permitted use
Subject to the terms of this Agreement, Seek AI grants you a non-exclusive, non-transferable, non-sublicensable, and limited license and right to use and access the Services described in any Order Form up to the Service Limits for your internal business purposes.
4.2 Your account and related responsibilities
You are required to create an account with us to access certain features of the Services.
4.3 Authorized representative
You represent and warrant that the person creating the account is authorized by Customer to create the account on behalf of Customer.
4.4 Customer Users
You may add Customer Users to your account subject to any Service Limits or other limitations in this Agreement. You are responsible and liable for each Customer User’s access to and use of your account and the Services and for any breach of this Agreement by a Customer User. Each Customer User is subject to the access and use terms and restrictions contained in this Agreement.
4.5 Security of your account
You are responsible for the security of your account, including the access to and use of your account by each Customer User. (i) You are responsible for establishing and maintaining the confidentiality of your account, your account access credentials (for example, username and password), and the information submitted via your account or otherwise in connection with your use or any Customer User’s use of the Services. You agree to use reasonable and prudent efforts to prevent unauthorized access to or use of your account or the Services. (ii) Your account is only available to you and your authorized Customer Users; you will not allow any other person to access or use your account. (iii) Each Customer User must have unique access credentials. Customer Users may not share access credentials. You will perform entitlement reviews of access controls for all Customer Users and provide Seek AI with reports of such entitlement reviews upon its request. If you wish to discontinue a Customer User’s access to the Services, you may remove a Customer User from your account; if you are unable to do so, you must notify Seek AI in writing and Seek AI will terminate such Customer User’s access as soon as practicable. (iv) You will notify us immediately of any unauthorized access to or use of your account or the Services. We have no liability to you for any unauthorized access of your account or the Services caused by your acts, omissions, or breach of this Agreement.
4.6 Backups
You are solely responsible for backing up your Customer Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your Customer Data. We will not be responsible for any backup, recovery, or other steps to ensure Customer Data is recoverable in the event of a data loss. We expressly disclaim any obligations with respect to storage of Customer Data.
4.7 Your communications with End Users
You are solely responsible and liable for all communications with End Users through Customer Applications and the Services, including by chat, text, email, video communication, or any other form of communication. You represent and warrant that all of your communications with End Users through Customer Applications and the Services are in compliance with Applicable Law and you have obtained any necessary consents and authorizations for such communications.
4.8 Restrictions on your use of the Services.
4.8.1 Minimum Age
You must be 18 years of age or older to create an account or use the Services.
4.8.2 Prohibited Use of the Services
You, each Customer User, and each End User will not do any of the following, collectively “Prohibited Use”: (a) decompile, disassemble, or reverse engineer the Services or the Platform, or attempt to obtain or perceive the source code from which any component of the Services or the Platform are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such code; (b) duplicate or create any derivative product from the Services or any component of the Services; (c) license, sublicense, lease, resell, or transfer the Services to a third party or allow third parties (other than Customer Users or End Users as permitted herein) to gain access to the Services; (d) access the Services if you are a direct competitor of us, or access the Services for a competitive purpose; (e) remove any copyright, trademark, or other proprietary notions from the Services; (f) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs; (g) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (h) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services; (i) conduct any denial of service (DoS) attack on the Services or otherwise attempt to disrupt, disable, or overload the Services; (j) attempt to gain access to the Services by automated means, such as bots; (k) attempt to gain unauthorized access to the Services, computer systems, or networks related to the Services; (l) create a false identity or attempt to mislead others as to the identity of the sender or the origin of any data or communications; (m) use the Services to violate any Applicable Law; or (n) interfere with another user’s use and enjoyment of the Services.
4.8.3 Export restrictions
This Agreement is expressly made subject to any Applicable Law regarding export from the United States of computer software, technical data, or derivatives. You agree that you will not export, directly or indirectly, any technical data (as defined by the US Export Administration Regulations) produced or provided under this Agreement or any direct product of such technical data, including software, to a destination to which such export or re-export is restricted or prohibited by US or non-US law. This obligation survives the termination or expiration of this Agreement.
4.9 Suspension of your account
We may suspend your account or access to the Services by you, any Customer User, or any End User, immediately if we, in good faith, believe: (a) that you, any Customer User, or any End User has materially breached any provision of this Agreement; (b) that you, any Customer User, or any End User is using the Services in a manner that threatens the security, integrity, or reliability of the Services; (c) that there has been unauthorized access or fraud related to your account or the Services; or (d) that the provision of the Services (or a portion thereof) will expose us or you to legal, regulatory, or compliance risk.
4.10 Changes to the Services
You acknowledge that the features and functions of the Services may be updated or otherwise be subject to change. We will not materially decrease the overall functionality of the Services you order.
4.11 Beta versions
We may make beta versions or features of the Services available to you, which you may use in your sole discretion. Beta versions may contain bugs, errors, and other problems that could cause system or other failures and data loss. We may discontinue beta versions and features at any time and decide not to make them generally available.
5. Fees and Payment Terms
5.1 Fees
You agree to pay the fees for the Services stated in the applicable Order Form and all additional fees and charges incurred during your use of the Services, such as professional services fees. Fees, taxes, and other charges will be invoiced in US dollars.
5.2 Taxes
The fees stated in an Order Form are exclusive of taxes. You agree to pay all sales, use, and other taxes and fees imposed by governmental authorities on our provision of the Services to you (other than taxes based on our net income).
5.3 Payments
Payments are non-refundable. Late payments will bear interest at the lesser of (i) 1.5% per month calculated and compounded monthly or (ii) the highest rate permissible under Applicable Law, except for payments that are properly disputed.
Invoice disputes. You must notify Seek AI within 60 days of the date of your invoice if you dispute any fees, taxes, or other charges in the bill. Unless otherwise required by Applicable Law, you cannot dispute an invoice or payment more than 60 days after the date of the applicable invoice.
6. Security of Customer Personal Information
6.1 Customer Personal Information definition
“Customer Personal Information” means information that identifies, relates to, or could reasonably be linked, directly or indirectly, with a particular individual, household, or device that is: (a) disclosed to us at any time by you, your Customer Users, or your End Users; or (b) processed or accessed at any time by us in connection with or incidental to this Agreement. Customer Personal Information does not include anonymized, aggregated, or deidentified data; restrictions on our use of Customer Personal Information do not apply to anonymized, aggregated, or deidentified data even if such data was created or derived from Customer Personal Information.
6.2 Our protection and use of Customer Personal Information
We will maintain appropriate technical and organizational safeguards for protection of the security and confidentiality of Customer Personal Information. Those safeguards will include measures for preventing access, use, disclosure, or transfer of Customer Personal Information other than for the Authorized Uses of Customer Data listed in Section 3.2 or as otherwise directed by you. We will not sell Customer Personal Information. We may disclose and transfer Customer Personal Information to third parties, including sub-processors, vendors, consultants, and other service providers: (a) who require access to or use of Customer Personal Information to provide technology or services to us or you in connection with the Authorized Uses of Customer Data, provided that such third parties are subject to appropriate data security and confidentiality obligations with respect to such Customer Personal Information; or (b) as otherwise directed by you. Despite our security efforts, we cannot guarantee or warrant that Customer Personal Information will not be accessed, acquired, disclosed for an improper purpose, altered, or destroyed by an unauthorized person or as a result of a breach of our security safeguards. Therefore, you should only share Customer Personal Information with us in connection with the Services to the minimum extent necessary.
6.3 Your responsibilities for Customer Personal Information
You are responsible for all compliance with Applicable Law relating to Customer Personal Information. You represent and warrant that you have complied with all Applicable Law and have provided the required notices or received the proper authority or consent to allow us to collect and process Customer Personal Information from you, your Customer Users, and your End Users to provide the Services and for the Authorized Uses of Customer Data. You acknowledge and agree that with respect to Customer Personal Information, as between you and us, you are the “owner” or “controller” and we are the “processor” as those terms are defined in Applicable Law relating to Customer Personal Information. You are responsible for responding to End User requests under Applicable Law relating to Customer Personal Information (“Requests”) and providing End Users with required notifications. If we receive a Request, we will inform you of the Request and inform the End User to make the Request directly to you. To the extent we assist you with your compliance obligations under Applicable Law relating to Customer Personal Information, you shall pay or reimburse us for any time spent by us for such assistance at our then-standard or other reasonable professional services rate and any out-of-pocket costs reasonably incurred.
6.4 Security Incident definition
“Security Incident” means any suspected or actual unauthorized access, acquisition, disclosure, use, theft, loss, destruction, alteration, or other compromise of: (a) Customer Personal Information in our possession or control; (b) your account, or any other portion of our Platform or other systems that contain Customer Personal Information; or (c) any of your access credentials to our Platform or the Services.
6.5 Security Incident obligations
The party discovering any Security Incident shall give the other party notice of the Security Incident as soon as practical, and no more than 3 business days after discovering the Security Incident. To the extent that Applicable Law requires a notification of the Security Incident to be provided to the subjects of the Customer Personal Information, governmental authorities, or other third parties, you are responsible for such notification, but you must obtain our written consent to name or otherwise identify Seek AI in any such notification. We are also permitted (but not required) to send any notification of the Security Incident under Applicable Law.
7. Confidential Information
7.1 Confidential Information definition
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Seek AI Confidential Information includes the terms and conditions of any Order Form (including pricing) but not the existence of an Order Form. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
7.2 Confidential Information obligations
The Receiving Party will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care)(a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and third parties who need access for purposes consistent with this Agreement. On the expiration or termination of the Agreement, at the request and option of the Disclosing Party, 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. Notwithstanding the preceding sentence, the Receiving Party may retain a copy of such Confidential Information as is reasonably necessary for record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend the Receiving Party’s rights or carry out the Receiving Party’s obligations, provided that the Receiving Party continues to treat the Confidential Information as Confidential Information under this Section 7 for as long as it retains it.
7.3 Confidential Information use exceptions
The Receiving Party may disclose Confidential Information as authorized by the Disclosing Party or as permitted by this Agreement, including the Authorized Uses of Customer Data. The Receiving Party may also disclose Confidential Information to the limited extent required by Applicable Law, legal process, or governmental request; provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. To the extent that Confidential Information includes Customer Personal Information, the provisions of Section 6 on Customer Personal Information shall control in the event of a conflict with this Section 7.
8. Representations, Warranties, and Disclaimer
8.1 Your additional representations and warranties.
By entering into this Agreement, you make representations and warranties to us. Some of your representations and warranties are contained in this Section and some are contained in other Sections of this Agreement (including Sections 4 and 6).
8.1.1 Valid agreement
You represent and warrant that you have validly accepted or entered into this Agreement and have the legal power to do so.
8.1.2 Customer Data
You represent and warrant that you have all rights necessary to grant all rights and licenses to the Customer Data granted to us in this Agreement. You further represent and warrant: (i) the Customer Data is accurate and complete; (ii) you have obtained the Customer Data lawfully and the Customer Data does not and will not violate any Applicable Law or any third party’s intellectual property rights; (iii) you have complied with all Applicable Law, provided all applicable notices, and received the proper authority or consent to allow us to collect and use Customer Data as provided in this Agreement; (iv) we may exercise our rights in Customer Data granted in this Agreement without liability or cost to any third party; and (v) the Customer Data complies with the terms of this Agreement. You have the sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information you, your Customer Users, and End Users provide or make available to us.
8.1.3 No Sanctions Lists
You represent and warrant that you and your Customer Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). If you, any Customer User, or any End User becomes placed on any Sanctions List, you will notify us immediately and discontinue the use of the Services by you, your Customer User, or your End User as applicable.
8.2 Seek AI’s representations and warranties.
8.2.1 Valid agreement.
We represent and warrant that we have validly accepted or entered into this Agreement and have the legal power to do so.
Provision of Services.
We represent and warrant that the Services perform materially in accordance with their description in an Order Form. Your exclusive remedy for a breach of this Section 8.2.b. will be, at our option, to (i) remediate any material non-conformity within 30 days of your written notice to us of the material non-conformity; or (ii) refund you the fees you paid for the time period during which the affected Services do not comply with this Section 8.2.b.
8.3 DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY OTHER MATERIALS, DATA, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED UNDER THIS AGREEMENT OR ON THE PLATFORM ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY. We expressly disclaim any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We expressly disclaim any warranties of system integration, non-interference, absence of any defects (whether latent or patent), or security of data. We do not warrant or make any representations concerning the accuracy, completeness, or usability of information or materials provided in connection with our Services, found on our Platform, or linked to our Platform. We expressly disclaim any warranty related to third-party websites or other third-party content that may be accessed through our Services or our Platform. We make no warranty or representation on the basis of trade usage, course of dealing, or course of performance. We do not warrant or represent that the Services or any other materials, data, software, products, or services provided under this Agreement or on the Platform will meet your requirements, comply with Applicable Law, generate enforceable obligations, or that the operation of them will be uninterrupted or error-free, or that all errors will be corrected. You acknowledge that our obligations under this Agreement are for the benefit of Customer only. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems.
9. Indemnification
Your indemnification of Seek AI. You agree to defend, indemnify, and hold us, our affiliates, and our third-party providers, licensors, and suppliers, along with our and their respective directors, officers, employees, and agents, harmless from any claims, damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of (a) the use of the Services, breach of this Agreement, or violation of any Applicable Law by you, any Customer User, any End User, or any person to whom you provide access to the Services; or (b) any Security Incident to the extent caused by an act or omission of you, any Customer User, any End User, or any person to whom you provide access to the Services.
10. Limitations of Liability
WE HAVE NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST US TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. This means that you will not seek any indirect, incidental, special, consequential, treble, or punitive damages from us. These disallowed damages include, but are not limited to, damages arising out of (a) unauthorized access to, loss, or theft of your account, information, or data or that of your Customer Users or End Users; (b) lost profits, costs of delay, failure of delivery, or business interruption; (c) costs of procurement of substitute goods, services, or technology; or (d) liabilities to third parties arising from any source. These limitations apply regardless of the cause of the damages, including negligence by us or our third-party providers, licensors, or suppliers. These limitations apply even if we have been advised of the possibility of such damages. These limitations apply without regard to whether other provisions of this Agreement have been breached or proven ineffective. These limitations also apply to any claims you may bring against any third party to the extent that we would be required to indemnify that third party for such claim.
WE ARE NOT LIABLE FOR DAMAGES OUT OF OUR CONTROL. You agree that we are not liable for delays, problems, or damages caused by you or a third party, by any act of nature, by any act beyond our reasonable control (for example, war, terrorist acts, labor disputes, government actions, pandemics), or by any criminal activity by someone unrelated to us.
YOU AGREE TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY US. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF SEEK AI, OUR AFFILIATES, AND OUR THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS ARISING OR RELATING TO THIS AGREEMENT IS LIMITED TO THE FEES THAT YOU PAID TO USE THE RELEVANT SERVICES IN THE 12 MONTHS BEFORE OUR BREACH OR THE FIRST INCIDENT GIVING RISE TO OUR LIABILITY.
YOU AND WE AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS. To the fullest extent permitted by Applicable Law, you and we each agree that all claims related to this Agreement must be brought within 2 years of the date the claim arises (even if Applicable Law provides for a longer statute of limitations).
YOU AND WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. The limitations of liability in this Section 10 constitute an important part of this Agreement and are among the reasons you and we are willing to enter into this Agreement. Without these limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.
11. Disputes
11.1 Summary of dispute resolution procedures
By entering into this Agreement, you are agreeing to resolve any dispute with us informally, and, if it cannot be resolved informally, through binding arbitration (unless you opt out) and to waive your rights to participate in any class action suit (unless you opt out) or to a jury trial.
11.2 Good faith negotiation of disputes
For any and all disputes or claims you have, you must first give us an opportunity to resolve your claim by sending a written description of your claim to info@seekwhatmatters.com. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
11.3 Binding arbitration
YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT OR OUR SERVICES, INCLUDING ANY BILLING DISPUTES, WILL BE RESOLVED BY BINDING ARBITRATION. This includes any claims against other parties relating to the Services provided or billed to you (such as our third-party providers, licensors, and suppliers) whenever you also assert claims against us in the same proceeding. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
11.4 Your choice to opt-out of arbitration
Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU ENTERED INTO YOUR ORDER FORM (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for each Order Form. You may opt out of these arbitration procedures by sending an email to info@seekwhatmatters.com and clearly stating that you wish to opt out of the arbitration procedures in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue your claim in arbitration.
11.5 Arbitration procedures
If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration. To begin arbitration, you must send a written letter requesting arbitration and describing your claim to our registered agent at Seek AI Inc. c/o Corporation Service Company, 80 State Street, Albany, NY, 12207 - 2543 and to the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes will be administered by the AAA under its Commercial Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with this Agreement, in which case this Agreement will govern. The AAA rules are available at www.adr.org. The arbitration of all disputes will be conducted by a single arbitrator, who will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party will return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA will appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Payment of all filing, administration, and arbitrator fees will be governed by the AAA rules. If you initiate the arbitration, you are required to pay AAA’s initial filing fee. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs. If we are the prevailing party, we may seek reimbursement of reasonable attorneys’ fees and costs in arbitration unless prohibited under Applicable Law.
11.6 Class action waiver
YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this class action waiver is unenforceable with respect to any claim, this class action waiver will not apply to that claim, but will still apply to any and all other claims that you or we may assert in that or any other action.
11.7 Your choice to opt-out of the class action waiver
Notwithstanding the above, YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER BEFORE THE OPT OUT DEADLINE STATED IN SECTION 11.4 ABOVE. You must opt out by the Opt Out Deadline for each Order Form. You may opt out of the class action waiver by sending an email to info@seekwhatmatters.com and clearly stating that you wish to opt out of the class action waiver in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be prohibited from pursuing your claim via a class action. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with these opt out requirements.
11.8 Injunctive relief
You and we acknowledge and agree that a breach by either party of its confidentiality obligations under Section 7, or a breach by you of your responsibilities under Sections 4.3, 4.5, or 4.8, could cause the other party irreparable harm for which monetary damages would not be an adequate remedy. You and we agree that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The binding arbitration provision of Section 11.3 shall not apply to requests for injunctive relief under this Section 11.8, which may be brought in arbitration or court proceedings. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.9 Jury trial waiver
If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
12. Term, Termination, and Survival
12.1 Term
This Agreement will commence on the date you enter into an Order Form and continue until terminated in accordance with Sections 12.2, 12.3, and/or 12.4.
12.2 Termination at end of Order Form
This Agreement will terminate upon the end of the service term (including renewal service term) for all Order Forms, or upon the earlier permitted termination of all Order Forms.
12.3 Termination for material breach
You or we may terminate this Agreement (including all Order Forms that are in effect) in the event the other party commits any material breach (including non-payment) of this Agreement and fails to remedy such breach within 30 days after receiving written notice of such breach.
12.4 Termination for insolvency
Subject to Applicable Law, you or we may terminate this Agreement immediately by providing written notice to the other party in the event of the other party’s insolvency, dissolution, liquidation, assignment for the benefit of creditors, or commencement of proceedings (voluntary or involuntary) for receivership or bankruptcy.
12.5 Suspension of access
We may suspend your access, a Customer User’s access, or End User’s access to the Services if permitted by another provision of this Agreement. We may not be required to give any notice to you to suspend access under such other provisions.
12.6 Effect of Termination
Upon termination of this Agreement, you, each Customer User, and each End User will immediately discontinue access to and use of the Services and promptly pay all outstanding amounts due. We have the right to delete all information and data related to your account and use of the Services immediately upon termination and will incur no liability for such deletion. But we may retain such data and information, in our sole discretion, for the purposes of complying with Applicable Law or our other business purposes, subject to any restrictions in this Agreement.
12.7 Survival
All provisions of this Agreement that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 6, 7, 8, 9, 10, 11, 12, and 13) will survive the termination or expiration of this Agreement.
13. General
13.1 Choice of law
This Agreement is governed by the laws of the state of New York, without regard to any conflicts of laws rules. Arbitration or court proceedings in state or federal court, as applicable, must be brought in New York City, New York. Each party consents to and waives all defenses of lack of personal jurisdiction or inconvenient forum to any arbitration or court proceeding brought in New York City, New York consistent with the terms of this Agreement.
13.2 Notices
You may deliver notices to us by email to info@seekwhatmatters.com or by postal mail to 145 6th Avenue, Floor 7, New York, NY 10019. If you are commencing an arbitration or legal proceeding against us, you must send notice of the arbitration or legal proceeding to our registered agent at Seek AI Inc. c/o Corporation Service Company, 80 State Street, Albany, NY, 12207 - 2543. We may deliver notices to you via email, mail, or electronic means using the contact information on your Order Form or in your account or by posting the notice on the Platform. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.
13.3 E-Sign Consent
We may need to provide you with certain communications, notices, agreements, billing statements, or disclosures (“Communications”) in writing regarding the Services. You agree and consent to receive Communications electronically from Seek AI, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“E-Sign Consent”). You also acknowledge and agree that you have the ability to receive Communications electronically. You may withdraw your consent to receive Communications electronically at any time by sending us notice at the email or postal address in the Notice Section 13.2 above. If you choose to withdraw your consent, we may terminate your access to the Services.
13.4 Marks and Publicity
Each party retains the exclusive ownership right to any distinctive trade names, logos, trademarks, service marks, product identifications, artwork, and other symbols and devices associated with such party or its products or services (“Marks”). We may use your name or Marks to identify you as a customer of us on our website or in other promotional materials.
13.5 Third-Party connections
The Services may include integrations, links, or connections to third-party websites, applications, or services. This inclusion does not imply review or endorsement by us; you proceed at your own risk to a third-party website, application, or service. We do not warrant, and are not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third-party. You must review and comply with any third-party terms of service or other provisions.
13.6 Third-Party beneficiaries
Our third-party providers, licensors, and suppliers and our affiliates are considered to be third-party beneficiaries of this Agreement solely to the extent necessary for them to enforce any protections afforded them by this Agreement, except as otherwise provided in this Agreement. There are no other third-party beneficiaries to this Agreement. All rights and benefits of this Agreement from us are intended solely for Customer as the original purchaser of the Services.
13.7 Independent Contractors
You and we agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between the parties. You and we are acting as independent contractors in making and forming this Agreement.
13.8 Assignment
You and we are prohibited from assigning this agreement to a third party without the prior written consent of the other party to this Agreement except as provided in the next sentence. You and we may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of substantially of all assets. Any permitted assignment will not relieve the assigning party of its obligations under this Agreement unless agreed in writing by the other party. Subject to the foregoing restrictions on assignment, this Agreement will bind and inure to the benefit of your and our respective successors and permitted assigns.
13.9 Amendment
We have the sole discretion to amend these Seek AI Terms of Service. If this occurs, we will provide you with notice via any means we consider reasonable, including, without limitation, email, posting on our Platform, or updates to the Services. After we provide notice, your continued use of the Services constitutes your acceptance of the changes and the Agreement as amended.
13.10 Waiver
You and we cannot waive any provision of this Agreement except in a writing signed by you and us. Our failure to insist on or enforce strict performance of any provision of this Agreement or any of our rights is not a waiver of any provision or right.
13.11 Severability
If any part of this Agreement is held invalid or unenforceable, that part may be severed from the Agreement to the minimum extent necessary to cure such invalidity or unenforceability. The remainder of the Agreement will remain valid and enforceable.
13.12 Entire Agreement
This Agreement is the entire agreement between you and us regarding the rights you have with respect to the Services, except as provided by Applicable Law, and you cannot rely on any other documents, statements on our Platform, or statements by any of our representatives or agents.
13.13 Trials
If You access or make use of the Services on a trial basis (the “Trial”), You acknowledge and agree that the Trial is provided on an “as-is” basis, and the Trial is provided without any indemnification, support, or warranties or representation of any kind. Further, the Trial may be subject to certain additional restrictions, modification, limitations all as determined by Seek AI from time-to-time. Seek AI may terminate, restrict, discontinue or limit Trials at any time and in it’s sole discretion.
