By subscribing to use the software, you agree to the terms and conditions of this End User License Agreement (“agreement”). You will be referred to as the “customer.” The customer acknowledges that customer has read and agrees to all the terms and conditions of this agreement with Cortical.io GmbH. (“Cortical.io”). The date that customer agrees to this agreement is the “effective date.”
1.1 “API Key” means application programming interface key provided to Customer by Cortical.io for use hereunder.
1.2 “Cortical.io Platform” means the software platform provided by Cortical.io to run the Software.
1.3 “Software” means Cortical.io’s natural language processing software product offering, including both the Retina: a multi-lingual database software and related data and one or more language definition corpora and the Cortical.io’s Engine for processing text software, in object and binary code form.
1.4 “Semantic Fingerprints” mean the unique semantic representation created by the Software based on Customer’s use of the Software.
2.1 License to Use Software. Subject to the terms of this Agreement, Cortical.io hereby grants to Customer a non-exclusive, non-transferable, personal license during the Agreement term to access and use the Software for Customer’s internal business use and solely on the Cortical.io Platform. Customer understands that the Software (i) is provided at no cost to Customer, (ii) has full functionality but may be subject to certain limitations, including but not limited to, the throttling of the speed, and (iii) may be used for commercial purposes, subject to the limitations set forth herein, including, without limitation, the throttling of the speed.
2.2 API License. Subject to the terms and conditions of this Agreement, Cortical.io hereby grants to Customer a non-exclusive, non-transferable, personal license during the Agreement term to use the API Key solely to use the Software pursuant to the terms of this Agreement.
2.3 Customer Restrictions. Customer may not: (i) download the Software outside of the Cortical.io Platform; (ii) use the Software for any unlawful, unauthorized, fraudulent or malicious purpose, (iii) modify, adapt, sublicense, translate, or sell the Software or use thereof to any third parties; (iv) reverse engineer, modify, decompile, time share, disassemble or extract any portion of any Software or the software used to provide the Software (except to the limited extent applicable laws specifically prohibit such restriction); (v) bypass any measures Cortical.io may use to prevent or restrict access to the Software or otherwise interfere with any other party’s use and enjoyment of the Software; or (vi) use the Software to infringe any intellectual property or other right of any other third party.
3.1 Ownership. The use of the Software is licensed to Customer for use during the term of this Agreement, not sold. There are no implied rights. Cortical.io retains all right, title and interest in and to the Software, and all data generated by the Software, including the copyrights in the Semantic Fingerprints, and all intellectual property rights in any of the foregoing. Cortical.io may, from time to time, modify the Software, (e.g. to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements).
3.2 Customer Data. As between Cortical.io’s and Customer, Customer shall own all data, information or material that Customer enters into the Software (“Customer Data”). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. Customer acknowledges and agrees that Cortical.io may use statistical data based on Customer Data as additional data points together in aggregate form with other statistical information related to the usage, traffic patterns and behavior of the users of the Software to provide and improve its Software and related services to its customers generally.
3.3 Semantic Fingerprints. The Software may generate unique Semantic Fingerprints based on the Customer Data entered into the Software. Subject to the terms of this Agreement, Cortical.io grants to Customer an exclusive, non-transferable, personal and perpetual license to use and reproduce the Semantic Fingerprints generated based on Customer’s Data solely for Customer’s own personal or business use. No rights are granted hereunder to sell or distribute such Semantic Fingerprints. Distribution licenses may be available under the terms of a separate agreement. Customer acknowledges that such license does not prevent Cortical.io from generating similar Semantic Fingerprints for other customers who use data substantially similar to the Customer Data with the Software.
4.1 Term. The initial term of Agreement shall commence upon the Effective Date and shall continue for until terminated as set forth herein.
4.2 Termination. Cortical.io may terminate this Agreement and/or discontinue the availability of the Software on the Cortical.io Platform at any time without notice to Customer. Customer may terminate this Agreement at any time by ceasing use of the Software.
4.3 Survival. Sections 2.3, 3.1, 3.2, 4.3, 5, 6, 7, 8 and 9 shall survive the expiration or termination of this Agreement.
THE Software provided to Customer hereunder IS provided ON AN “as is” basis WITHOUT SUPPORT SERVICES, and Cortical.io AND ITS SUPPLIERS make no representation or warranty relating thereto, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or any other warranties that might arise from the course of dealing, usage or trade practice. No advice or information provided by Cortical.io will create a warranty. Customer assumes total responsibility for any and all risk arising from Customer’s use of, or inability to use, the Software or any product of THE Software, such as semantic fingerprints. CORTICAL.IO SHALL HAVE NO RESPONSIBILITY FOR LOSS OF DATA OR INABILITY TO USE THE SOFTWARE.
6.1 Indemnity by Customer. Customer agrees to defend any third party claim against Cortical.io alleging or relating to any Customer business practice, Customer Data, or use of the Software which is in violation of any law, rule, or regulatory action, breaches this Agreement or infringes any intellectual property or other right of any third party. Customer to pay any final non-appealable judgment rendered on such claim, provided Cortical.io gives Customer prompt notice of the claim. Cortical.io reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will assist and cooperate with Cortical.io in asserting any available defenses.
7.1 No Liability for Consequential Damages. To the maximum extent permitted by applicable law, EXCEPT FOR A BREACH OF SECTION 3 BY CUSTOMER OR CUSTOMER’s indemnification obligations pursuant to section 6, in no event shall either party be liable to the other for any incidental, indirect, special, exemplary damages, damages for loss of business profits, loss of business information, or other pecuniary loss arising out of the use of THE Software, even if such party has been advised of the possibility of such loss or damages. The limitations on liability and types of damages stated in this Section apply, regardless of the form of any lawsuit or claim either party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided in this Agreement fails of its essential purpose. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to Customer, some or all of the above disclaimers, exclusions, or limitations may not apply to Customer, and Customer might have additional rights.
7.2 Direct Damages. In no event shall Cortical.io’s direct damages exceed one hundred dollars (US $100.00). Additionally, in no event shall Cortical.io’s suppliers be liable for any damages of any kind.
8.1 Force Majeure. Cortical.io shall not be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of Cortical.io or its contractors, agents or suppliers, including but not limited to utility or transmission failures, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, earthquakes, natural or other disasters.
8.2 Waiver/Severability. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect.
8.3 Relationship. Cortical.io and Customer are independent contractors and nothing in this Agreement shall be construed to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
8.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
8.5 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California applicable to agreements wholly executed and wholly performed therein, excluding its choice of law rules based upon the jurisdiction of any legal action or proceeding. Any legal action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a state or federal court of competent jurisdiction located in the counties of San Francisco, California, and the parties hereby consent to the in personam jurisdiction and venue of said courts in which such matter is first filed. In any legal action or proceeding brought under this Agreement, the prevailing party will be entitled to recover its attorneys’ fees and costs. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this transaction.
8.6 Entire Agreement. This Agreement sets forth the entire understanding and agreement between Customer and Cortical.io and supersedes all prior or contemporaneous agreements regarding its subject matter. Any different or additional terms preprinted on any Customer purchase order or similar document are hereby rejected, notwithstanding any terms set forth therein to the contrary.
8.7 Changes. This Agreement may be changed, modified, supplemented or updated by Cortical.io from time to time. If Cortical.io makes a material change to this Agreement that will affect an existing license, Cortical.io will notify Customer 30 days in advance. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must cease using the Software immediately.