TERMS OF SERVICE
These Terms of Service create a legal agreement between Myko AI Inc. (“Myko AI”) and the entity or person accessing the Service (as defined below) ("Customer"). BY ACCEPTING THE TERMS OR USING THE SERVICE, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS (the “Agreement”).
1. DEFINITIONS AND CONSTRUCTION.
1.1 “Affiliate” means any entity or affiliated group, which directly or indirectly (a) controls a party, (b) is controlled by a party or (c) is under common control with a party, for as long as such relationship remains in effect, including any subsidiary thereof.
1.2 “Content” means all works of authorship contained within the Service; including, but not limited to, Myko AI’s proprietary analyses, models, or reports derived from Customer Data.
1.3 “Customer Data” means information submitted to the Service by Customer or a Customer End User, or collected from Customer or a Customer End User by the Service.
1.4 “Customer End User” means an employee, independent contractor, subcontractor, or vendor of Customer who is authorized to access the Service on Customer’s behalf.
1.5 “Service” means the Myko AI business and financial intelligence platform.
2. MYKO AI RESPONSIBILITIES.
2.1 Access to Service. Subject to the terms and conditions of this Agreement, Myko AI hereby grants to Customer a limited, nonexclusive, non-transferable right to access and use the Service, during the Subscription Term, solely for Customer’s internal business purposes. The number of Customer End Users authorized to access the Service at any given time may not exceed the number of concurrent users specified in the applicable Use Tier. Customer will be solely responsible for limiting access to and usage of the Service to authorized users and for ensuring that its authorized Customer End Users use the Service only as authorized hereunder and in compliance with all applicable laws and regulations.
2.2 Protection of Customer Data. The Service is hosted on, and the Customer Data is processed in, third party cloud servers. Myko AI does not control the security of the cloud itself. Notwithstanding the foregoing, during the Term, Myko AI will take all reasonable administrative and technical steps to ensure adequate controls are in place to protect the servers by appropriate means, including but not limited to administrator access controls, antivirus applications, virtual firewalls, software updates/patching and routine cloud backups.
3. USE OF SERVICE.
3.1 Customer End User Credentials. A Customer End User’s credentials may not be used by any individual other than the specified Customer End User. A Customer End User identification may be permanently reassigned by Customer to a new individual replacing one who no longer requires ongoing use of the Service on Customer’s behalf.
3.2 Customer Responsibilities. Customer will (a) be responsible for Customer End Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, (c) notify Myko AI within two (2) business days of any known or suspected unauthorized access or use of the Service or any other known or suspected breach of security relating to the data, information or services provided therein, and (d) use the Service only in accordance with this Agreement and applicable laws and government regulations.
3.3 Usage Restrictions. Customer will not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Service or data contained therein, (e) attempt to gain unauthorized access to the Service or its related systems or networks, (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (g) copy the Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Service, (i) access the Service in order to build a competitive product or service, (j) reverse engineer the Service (to the extent such restriction is permitted by law); or (h) copy or distribute the Content.
4. FEES AND PAYMENT.
4.1 Fees and Payment. Customer may use the Service only as permitted in this Agreement and subject to the terms of the use tiers as published on the Myko AI website. The fees applicable to Customer’s Use Tier will be deducted on a monthly basis from the credit card used to create Customer’s account. Customer represents and warrants that Customer has the authority to use such credit card for purchasing a subscription to the Services. 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 Myko AI. Myko AI reserves the right to update the fees for Service at any time. Myko AI will notify Customer of any price changes by publishing on our website, and 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.
4.2 Overdue Charges. If any invoiced amount is not received by Myko AI by the due date, then without limiting Myko AI’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.3 Suspension of Service. If any charge owing by Customer is overdue, Myko AI may, without limiting its other rights and remedies, suspend Customer’s access to the Service until such amounts are paid in full, provided Myko AI has given Customer at least ten (10) days’ prior notice that its account is overdue in accordance with the “Notices” section below.
4.4 Taxes. Myko AI's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “TaxesTaxes”). Customer is responsible for paying all Taxes associated with its orders hereunder. If Myko AI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Myko AI will invoice Customer and Customer will pay that amount unless Customer provides Myko AI with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Myko AI is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES.
5.1 Reservation of Rights. Myko AI reserves all of its right, title and interest in and to the Service, including (a) its programming architecture, (b) any improvements, enhancements, modifications or features for the Service developed during the term of this Agreement, and (c) all intellectual property rights in the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License by Customer to Host and Use Customer Data. Customer grants Myko AI and its Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, as necessary for Myko AI to provide the Service in accordance with this Agreement. In addition, Myko AI shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (but excluding the Customer Data itself) (collectively, “Derived Data”), and Myko AI will be permitted (during and after the term hereof) to (i) use the Derived Data to improve and enhance the Service and for other modeling, development, and diagnostic purposes in connection with the Service, and (ii) disclose the Derived Data solely in aggregate or other de-identified form in connection with its business. Subject to the limited licenses granted herein, Myko AI acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data. Customer represents and warrants that it has the right to grant this license to the Customer Data to Myko AI, and that Customer’s and Myko AI’s use of the Customer Data as contemplated herein does not violate any rights of any third parties.
5.3 License by Customer to Use Feedback. Customer grants to Myko AI and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer End Users relating to the operation of the Service.
5.4 Third-Party Platforms. If Customer connects the Service to any third-party platform, via a third-party API or otherwise, in order to upload information from such third-party platform to the Service, Customer represents and warrants that it has the right from such third-party platform to so export such information, and in so exporting such information Customer will not be breaching the terms of any agreement with such third-party platform. Customer acknowledges and agrees that, as between Myko AI and Customer, any such information will be deemed Customer Data.
6. CONFIDENTIALITY.
6.1 Definition of Confidential Information. “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. Confidential Information of Customer includes Customer Data; Confidential Information of Myko AI includes the Service and the terms and conditions of this; and Confidential Information of each party includes business and marketing plans, software and technical information, product plans and designs, and business processes disclosed by such party. 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.
6.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care), (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and using protections no less stringent than those herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNIFICATION
7.1 Disclaimers.
(a) THE SERVICE AND CONTENT IS PROVIDED “AS IS,” AND NEITHER MYKO AI NOR ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, LICENSEES, OR LICENSORS (COLLECTIVELY, "MYKO AI PARTIES"), MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NOR DO THE MYKO AI PARTIES WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPLETE, OR ERROR-FREE.
(b) THE SERVICE IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. ANY ACTION BY CUSTOMER/CUSTOMER END USER IN RESPONSE TO THE INFORMATION PROVIDED THROUGH THE SERVICE IS AT CUSTOMER’S/CUSTOMER END USER’S SOLE DISCRETION AND RISK. MYKO AI HAS NO RESPONSIBILITY FOR, OR INVOLVEMENT WITH, ANY TRANSACTIONS OR ANY INTERACTIONS THAT MAY RESULT FROM CUSTOMER’S USE OF THE SERVICE.
7.2 Limitation of Liability. MYKO AI'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
7.3 Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
7.4 Indemnification by Customer. Customer will indemnify and hold harmless, and in Myko AI’s discretion, defend, Myko AI against all damages, attorneys fees, costs, and settlements, arising from any demand, suit or proceeding made or brought against Myko AI by a third party (a) alleging that the Customer Data, or Customer's use of the Service in breach of this Agreement, infringes or misappropriates a third party’s intellectual property rights or violates applicable law, or (b) arising from a breach of any term of this Agreement by Customer.
8. TERM AND TERMINATION
8.1 Term. The initial term shall be one (1) month from creation of Customer’s account, and will automatically renew for additional one (1) month periods (collectively, the “Subscription Term”) unless either party provides notice of nonrenewal no later than fifteen (15) days prior to the end of the then-current Term. Customer may terminate at any time during the Subscription Term by uninstalling the Service; provided, however, that no refunds will be made for remaining days within the then-current Subscription Term.
8.2 Termination. A party may terminate this Agreement for cause (a) upon 10 business days’ written notice to the other party of a material breach if such breach, if curable, remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.3 Payment upon Termination. If this Agreement is terminated by Myko AI in accordance with Section 8.2, Customer will pay any fees that Customer would otherwise have had to pay for the remainder of the Subscription Period had it not been terminated.
8.4 Customer Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Myko AI will make the Customer Data (excluding all Images) available to Customer for export or download, subject to Customer’s payment of Myko AI’s standard data export fees then in effect. After such 30-day period, Myko AI will have no obligation to maintain or provide any Customer Data, and may in its sole discretion thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
9. GENERAL PROVISIONS
9.1 Export Compliance. The Service may be subject to export laws and regulations of the United States and other jurisdictions. Myko AI and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any Customer End User to access or use the Service in or by a national of a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
9.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Myko AI and Customer regarding Customer’s use of Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
9.3 Relationship of the Parties. The parties to this Agreement are independent contractors. Nothing in this Agreement shall be deemed as creating a partnership, joint venture, partnership, agency, fiduciary or employment relationship, franchise, fiduciary, employment relationship or business opportunity between them. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party.
9.4 Non-disparagement. During the Term and thereafter, neither party shall say, publish or do anything that casts the other party, or any officer or director of the other party, in an unfavorable light, or disparage or injure the goodwill, business reputation or relationship of the other party.
9.5 Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.
9.6 Notices. Except as otherwise specified in this Agreement, all legal notices related to this Agreement will be in writing and may be sent via overnight courier, certified mail, or email with confirmation copy by one of the previous two methods. Notices will be deemed given upon delivery to the recipient’s address indicated at the beginning of this Agreement or such other address as the recipient may from time to time specify.
9.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
9.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
9.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) and any attempted assignment without such consent will be void and of no effect. Notwithstanding the foregoing, Myko AI may assign this Agreement in its entirety without Customer’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or outstanding capital stock. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.10 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of god, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (a) gives the other party written notice of such cause promptly; and (b) uses its reasonable efforts to correct such failure or delay.
9.11 Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware.
9.12 Venue. Any controversy or claim arising out of or relating to this contract, or the breach thereof, which cannot be settled through good faith negotiations between the parties in thirty (30) days, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be heard by one arbitrator, selected by the AAA, in Wilmington, Delaware. Any party or witness residing outside of Delaware may testify via video conference. The prevailing party shall be entitled to an award of its attorney’s fees. The award rendered by the arbitrator shall be non-appealable, and judgment on the award may be entered in any court having jurisdiction thereof.
9.13 Counterparts. This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures.