Last updated: April 8, 2022
This Cohere Software As A Service Agreement (the “Agreement”) is entered into between Cohere Inc. (“Cohere”), with its principal place of business located at 171 John Street, Suite 200, Toronto, ON M5T 1X3 and the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Cohere API SaaS Services (as defined below) (such customer, the “Customer”), and is entered into on the earlier of the date Customer first uses any part of the Cohere API SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). This Agreement includes any current or future Order Forms (all as defined below in Section 1), and all such documents are incorporated by this reference. Each of Cohere and Customer will individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of the Cohere API SaaS Services for AI-powered text prediction services.
BY USING THE COHERE API SAAS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(l). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE COHERE API SAAS SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO COHERE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE COHERE API SAAS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO COHERE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE COHERE API SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
COHERE’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE COHERE API SAAS SERVICES, EXCEPT WITH COHERE’S PRIOR WRITTEN CONSENT.
Unless the context requires otherwise, capitalized terms used in this Agreement have the meaning ascribed to them in this Section 1.
- “Administrator Accounts” has the meaning set out in Section 7.
- “Agreement” has the meaning set out on the first page of this Agreement.
- “API Data” means any Customer Data submitted by Customer to the Cohere API.
- “API Key” has the meaning set out in Section 4(a)(i).
- “Baseline Model” means an AI-powered neural network for natural language processing based on parameters that are trained on text scraped from the open web.
- “Claim” means any actual, threatened, or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding, or any other claim or demand.
- “Cohere” has the meaning set out on the first page of this Agreement.
- “Cohere API” means Cohere’s proprietary application programming interface, and any related documentation all of which are designed to facilitate Customer’s access to and use of the Cohere API SaaS Services through interfaces between Customer applications and the Cohere API SaaS Services.
- “Cohere API SaaS Services” means services through which Cohere may host or make available the Cohere Platform and Cohere API as may be further described in an Order Form and any component thereof.
- “Cohere Platform” means Cohere’s AI-powered text prediction platform utilizing proprietary Baseline Models and made available under the name Cohere API and any updates thereto.
- “Cohere Property” has the meaning set out in Section 3(c).
- “Confidential Information” has the meaning set out in Section 10(a).
- “Content” means any data, information, content, records, or files.
- “Custom Model” means an AI-powered neural network for natural language processing based on parameters that are trained using Customer Data.
- “Customer” has the meaning set out on the first page of this Agreement.
- “Customer Application” has the meaning set out in Section 4(a)(iii).
- “Customer Data” means any Content that Customer (or any of its Permitted Users) (i) loads, submits, transmits to or enters into the Cohere API SaaS Services, or (ii) otherwise transmits to Cohere in connection with this Agreement. For greater certainty, Customer Data may include, but is not limited to, Personal Information, API Data and Finetuning Data but does not include any Feedback or any Content that Customer receives through or from the Cohere API SaaS Services.
- “Customer User Account” has the meaning set out in Section 7.
- “Discloser” has the meaning set out in Section 10(a).
- “Effective Date” has the meaning set out on the first page of this Agreement.
- “Feedback” has the meaning set out in Section 3(a).
- “Fees” has the meaning set out in Section 9(a).
- “Finetuning Data” means any Customer Data comprised of training or finetuning data submitted by Customer to the Cohere API SaaS Services.
- “Force Majeure” has the meaning set out in Section 14(g).
- “Initial Term” has the meaning set out in Section 13(a).
- “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
- “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs, and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants, and other experts and professionals, or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default, or assessment).
- “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Order Form” means any order form that references this Agreement and that is executed by authorized signing officers of each Party.
- “Parties” and “Party” have the meaning set out on the first page of this Agreement.
- “Permitted User” means those employees and independent contractors authorized by Customer on Customer’s behalf to access and use the Cohere API SaaS Services.
- “Personal Information” has the meaning set out in 5(a).
- “Privacy Laws” has the meaning set out in 5(a).
- “Professional Services” has the meaning set out in Section 2(g).
- “Publicity” has the meaning set out in Section 14(b).
- “Recipient” has the meaning set out in Section 10(a).
- “Renewal Term” has the meaning set out in Section 13(a).
- “Support Services” has the meaning set out in Section 8.
- “Term” has the meaning set out in Section 13(a).
- “Website” means any websites used by Cohere and its subcontractors to provide the Cohere API SaaS Services, including the website and subdomains located at api.cohere.ai.
- Cohere API SaaS Services
- Provisioning of the Cohere API SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Cohere will make the Cohere API SaaS Services available to Customer on the terms and conditions set out in this Agreement during the Term.
- Custom Model. If set out in an Order Form or if Customer selects a Custom Model on the Website, Cohere will develop a Custom Model for Customer and provide the Cohere API SaaS Services using the Custom Model. For clarity, where Cohere provides the Cohere API SaaS Services using a Custom Model, references to Cohere API SaaS Services in this Agreement will include the Custom Model. Cohere will use the Custom Models solely to provide the Cohere API SaaS Services to Customer. Upon termination or expiration of this Agreement, Cohere will destroy any Custom Models.
- Customer’s Permitted User Responsibilities. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the Cohere API SaaS Service, and for Permitted Users’ compliance with this Agreement.
- Restrictions on Use. Customer will not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Cohere API SaaS Services or any intellectual property rights therein, or otherwise make the Cohere API SaaS Services available to others;
- permit any third party direct access the Cohere API, including through Customer’s Application on a pass-through basis, or otherwise use, copy, distribute, or make available the Cohere API or the Cohere API SaaS Services to permit timesharing, service bureau use or commercially exploit the Cohere API SaaS Services;
- use or access the Cohere API SaaS Services or the Cohere API (A) in violation of any applicable law or intellectual property right, (B) in a manner that threatens the security or functionality of the Cohere API SaaS Services or the Cohere API, or (C) for any purpose or in any manner not expressly permitted in this Agreement;
- use the Cohere API to circumvent the intended features, functionality or limitations of the Cohere API SaaS Services;
- use the Cohere API SaaS Services or the Cohere API for personal, family or household purposes;
- develop any Customer Applications (as defined below) that: (A) are fraudulent, misleading, obscene or pornographic; (B) infringe on any third party’s intellectual property rights or rights of publicity or privacy; (C) is defamatory, trade libelous, threatening, or harassing; (D) contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data; (E) replicates or attempts to replace the essential user experience of the Cohere API SaaS Services or any of Cohere’s other products or services; (F) is in any manner that is similar to, or competitive with, the Cohere API SaaS Services; or (G) otherwise violates any applicable law;
- use the Cohere API SaaS Services in a manner which, in the opinion of Cohere would tend to bring Cohere or any of its trademarks into public disrepute, contempt, scandal or ridicule, would adversely affect the reputation or goodwill of Cohere or any of its the trademarks, or adversely affect the relationship between Cohere and any of its licensors or other customers;
- use the Cohere API SaaS Services to generate political propaganda;
- use the Cohere API SaaS Services to store or transmit material that is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, libelous, obscene, or otherwise objectionable or unlawful;
- use the Cohere API SaaS Services to impersonate any person in violation of such person’s privacy or personality rights;
- use the Cohere API SaaS Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
- Modify, reverse engineer, de-compile, disassemble or otherwise alter the Cohere API SaaS Services or the Cohere API;
- remove or obscure any proprietary notices or labels on the Cohere API SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
- access or use the Cohere API SaaS Services or any Content that Customer receives through or from the Cohere API SaaS Services for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the Cohere API SaaS Services or Cohere API.
- Suspension of Access; Scheduled Downtime; Modifications. Cohere may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
- suspend Customer’s access to or use of the Cohere API SaaS Services:
- for scheduled maintenance;
- due to a Force Majeure;
- if Customer is delinquent in its payment of Fees under Section 9;
- if Cohere believes in good faith that Customer or any Permitted User has violated any provision of this Agreement or any other responsible use guidelines Cohere provides to Customer or are posted on the Website;
- to address any emergency security concerns; or
- if required to do so by a regulatory body or as a result of a change in applicable law;
- temporarily suspend the availability of a Custom Model where Customer has not accessed such Custom Model for 24 consecutive hours, provided that Cohere will promptly restore Customer’s access to the Custom Model when Customer attempts to access the temporarily suspended Custom Model; and
- make any Modifications to the Cohere API SaaS Services.
- Subcontracting. Cohere may engage third parties, including cloud service providers, to provide the Cohere API SaaS Services.
- Professional Services. Cohere may provide one-time implementation of the Cohere API SaaS Services including configuration, technical integration, and initial training required to successfully implement the Cohere API SaaS Services as may be set out in an Order Form.
- Ownership; Reservation of Rights
- CUSTOMER RETAINS ALL OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN AND TO CUSTOMER DATA. CUSTOMER GRANTS TO COHERE A NONEXCLUSIVE, WORLDWIDE, ROYALTY-FREE, IRREVOCABLE, SUBLICENSABLE, AND FULLY PAID-UP RIGHT TO ACCESS, COLLECT, USE, PROCESS, STORE, DISCLOSE AND TRANSMIT CUSTOMER DATA TO: (I) PROVIDE THE COHERE API SAAS SERVICES; (II) TO EXERCISE ITS RIGHTS AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING ENSURING CUSTOMER IS COMPLYING WITH THE TERMS OF THIS AGREEMENT AND ANY OTHER RESPONSIBLE USE GUIDELINES COHERE PROVIDES TO CUSTOMER OR THAT COHERE POSTS ON THE WEBSITE; AND (III) IMPROVE AND ENHANCE THE COHERE API SAAS SERVICES AND COHERE’S OTHER OFFERINGS AND BENCHMARK THE FOREGOING, INCLUDING BY SHARING API DATA AND FINETUNING DATA WITH THIRD PARTIES WHO MAY USE THE FINETUNING DATA AND API DATA TO PROVIDE SERVICES TO COHERE AND FOR OTHER PURPOSES PERMITTED UNDER THEIR TERMS AND CONDITIONS. FOR CLARITY AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COHERE WILL NOT SHARE A CUSTOM MODEL WITH ANY THIRD PARTY BUT MAY SHARE FINETUNING DATA USED TO TRAIN OR FINETUNE A CUSTOM MODEL WITH THIRD PARTIES. THE FOREGOING LICENSE RIGHTS DO NOT GRANT COHERE ANY OWNERSHIP IN THE CUSTOMER DATA AND ALL RIGHTS NOT EXPRESSLY GRANTED BY CUSTOMER TO COHERE UNDER THIS AGREEMENT ARE RESERVED.
- COHERE DOES NOT REPRESENT, WARRANT, OR COVENANT THAT COHERE HAS REVIEWED ANY THIRD PARTY TERMS AND CONDITIONS AND IS NOT RESPONSIBLE FOR ANY API DATA OR FINETUNING DATA SHARED WITH THIRD PARTIES. COHERE DOES NOT ENDORSE ANY THIRD PARTY SERVICE AND CUSTOMER ACKNOWLEDGES THAT IF CUSTOMER CHOOSES TO SUBMIT ANY API DATA OR FINETUNING DATA TO THE COHERE API SAAS SERVICES, CUSTOMER DOES SO ENTIRELY AT ITS OWN RISK. CUSTOMER FURTHER ACKNOWLEDGES THAT ANY THIRD PARTY TERMS AND CONDITIONS MAY NOT HAVE THE SAME OR SIMILAR COMMITMENTS OR PROTECTIONS AS THOSE CONTAINED IN THIS AGREEMENT AND ANY FINETUNING DATA OR API DATA SHARED BY COHERE WITH THIRD PARTIES WILL BE ACCESSED, USED, AND OTHERWISE HANDLED BY SUCH THIRD PARTIES IN ACCORDANCE WITH THEIR TERMS AND CONDITIONS, WHICH MAY PERMIT SUCH THIRD PARTY TO USE FINETUNING DATA OR API DATA FOR ITS OWN PURPOSES.
- Cohere or its licensors retain all ownership and intellectual property rights in and to: (i) the Cohere API SaaS Services; (ii) the Cohere Platform; (iii) the Cohere API; (iv) anything developed or delivered by or on behalf of Cohere in accordance with the terms of this Agreement, including Baseline Models and Custom Models (other than the Customer Data contained in such Custom Model); and (v) any Modifications to the foregoing (collectively, the “Cohere Property”). All rights not expressly granted by Cohere to Customer under this Agreement are reserved.
- To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Cohere API SaaS Services to Cohere (“Feedback”), Customer acknowledges and agrees that:
- the Feedback does not contain confidential or proprietary information and Cohere is not under any obligation of confidentiality with respect to the Feedback; and
- Cohere will be entitled to use, commercialize or disclose (or choose not to use, commercialize or disclose) such Feedback for any purpose, in any way, in any manner and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.
- API and Applications
- Use of the Cohere API and Cohere API Documentation
- API Keys Required to Access the Cohere API. In order to use of the Cohere API, Customer must first sign up to the Cohere API SaaS Services that include access to the Cohere API and generate one or more API keys (each, an “API Key”). Customer acknowledges that such API Keys are Cohere’s Confidential Information (as defined below) and will not share Customer’s API Keys with any third party without Cohere’s prior consent. In addition, Cohere may revoke Customer’s API Keys any time without Customer’s consent.
- Use of the Cohere API. Customer may incorporate the Cohere API into Customer’s products and services and otherwise use the Cohere API in connection with its internal business purposes, provided such incorporation and use is done in accordance and in compliance with this Agreement and the related documentation.
- Licence to Cohere API and related documentation. Cohere hereby grants to Customer a revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Cohere API including related documentation solely to facilitate Customer’s development of applications that interface with the Cohere API SaaS Services in accordance with this Agreement and any provided documentation (each such application, a “Customer Application”).
- API Call Limitations. Unless otherwise set out in an Order Form, the number of calls Customer or Customer Application makes to the Cohere API during any given period may be limited, at Cohere’s sole discretion, based on various factors that include the manner in which Customer Application makes calls to the Cohere API and the anticipated volume of use associated with Customer Application.
- Changes to the Cohere API. Cohere reserves the right to change the Cohere API and related documentation at any time and without notice. Customer acknowledges and understands that these changes may require Customer to make changes to Customer Applications at Customer’s own cost and expense.
- Suspension or Revocation of Access. Notwithstanding the foregoing, Cohere retains the right, at Cohere’s sole discretion, to suspend or revoke Customer’s access to the Cohere API, at any time and for any reason, including for: (A) violation of the terms of this Agreement or any other responsible use guidelines Cohere provides to Customer or are posted on the Website; (B) Customer’s use of the Cohere API contrary to the related documentation; (C) for scheduled maintenance; or (D) to address any emergency security concerns.
- Monitoring Usage of API
- Customer acknowledges and agrees that Cohere may monitor Customer’s use of the Cohere API and that Customer will not block or otherwise interfere with Cohere’s monitoring.
- At Cohere’s request, Customer will provide Cohere access to, and use of, Customer Application, at no cost to Cohere, for the purpose of monitoring or reviewing Customer Application for compliance with this Agreement.
- Each Party will comply with all applicable federal, provincial and local laws, rules and regulations concerning the privacy and security of personally identifiable information (“Personal Information”), including, without limitation, the requirements of the Personal Information Protection and Electronic Documents Act (“Privacy Laws”). The Parties will provide reasonable assistance to each other in order to allow the Parties to comply with their respective obligations under Privacy Laws.
- To the extent that Cohere receives Personal Information in the course of providing the Cohere API SaaS Services under this Agreement, Cohere will:
- only use Personal Information for the purposes of rendering the Cohere API SaaS Services in accordance with the Agreement or exercising its rights under this Agreement, or as otherwise instructed by Customer in writing from time to time;
- not disclose any Personal Information to any third party except as permitted under this Agreement (including Section 3(a)) or with the prior written consent of Customer;
- where any disclosure or transfer of Personal Information is required by law, promptly notify Customer in writing before complying with any such requirement for disclosure (except where legally prohibited from doing so);
- implement physical, technical and administrative and other organizational measures to safeguard the Personal Information against loss, theft, damage or unauthorized or unlawful access or processing;
- store and access Personal Information from its servers located in North America and the Netherlands;
- limit access to Personal Information only to those employees and sub-processors who need to have access to the Personal Information for the purposes of Cohere rendering the Cohere API SaaS Services under the Agreement or Cohere exercising its rights under this Agreement;
- notify Customer at first reasonable opportunity upon Cohere becoming aware of, or suspecting, any loss, theft, damage or unauthorized or unlawful access or processing, and comply with Customer’s reasonable instructions in connection therewith; and
- upon expiration or earlier termination of this Agreement, return or destroy all Personal Information in the possession or control of Cohere (subject to any legal requirement to maintain such Personal Information).
- Communications Over the Internet and Public Networks
- Customer User Account
Upon Customer’s request, Cohere will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Cohere API SaaS Services (each user, and each administrator, a “Permitted User”).
Customer will ensure that Permitted Users only use the Cohere API SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Cohere of any actual or suspected unauthorized use of the Cohere API SaaS Services. Cohere reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the Cohere API SaaS Services, including Permitted Users, are contractually bound to terms and conditions with customer that are no less restrictive or protective of Cohere’s rights than those set forth in this Agreement.
Customer will generally have access to Cohere’s technical support services (“Support Services”): (i) via email at email@example.com; and (ii) via Cohere’s knowledge base and documentation available online at api.cohere.ai. Any additional support related terms and conditions may be set out in an Order Form.
- Fees and Payment
- Fees. Unless otherwise set out in an Order Form, Customer will pay to Cohere the fees described in Cohere’s then-current price list as may be amended from time to time in Cohere’s discretion (the “Fees”). If Customer’s use of the Cohere API SaaS Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
- Changes to the Fees. Cohere will provide Customer with no less than seven days notice of any changes to the Fees.
- Payment. Customer will pay for the Fees via credit card or another manner then available on the Website in accordance with the timing and frequency set out on Cohere’s then-current price list. Customer must provide current, complete and accurate information for Customer’s billing account. Customer must promptly update all information to keep Customer’s billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and Customer must promptly notify Cohere if Customer’s payment method is cancelled (e.g., for loss or theft) or if Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of its Customer User Account. Changes to such information can be made in the Customer User Account settings. If Customer fails to provide any of the foregoing information, Customer agrees that Cohere may continue charging Customer for any use of paid services under Customer’s billing account.
- Disputed Charges. If Customer believes Cohere has charged Customer incorrectly, Customer must contact Cohere no later than 45 days after having been charged by Cohere in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Cohere reserves the right to suspend Customer’s access to the Cohere API SaaS Services or terminate the Agreement, in Cohere’s sole discretion, if Customer’s credit card or other payment method (as applicable) is declined after two or more attempts by Cohere to charge Customer’s credit card or other payment method (as applicable). Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Cohere.
- Suspension. Any suspension of the Cohere API SaaS Services by Cohere pursuant to the terms of this Agreement, including suspension of the Cohere API SaaS Services pursuant to Section 2(d)(i) or 9(e), will not excuse Customer from its obligation to make payments under this Agreement.
- Confidential Information
- Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement. Where Discloser is Cohere, Confidential Information includes any information concerning the business, affairs, operations, properties, assets (including, without limitation, technology and intellectual property), employees, customers, suppliers contracts, prospects, liabilities, research, processes or methods of operation proposed by Cohere, its affiliates, and the investment that is made available to Customer, as well as any reproductions, summaries, analyses or extracts of such information. Where Discloser is Customer, Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known to Recipient prior to the Effective Date or that subsequently becomes known to Recipient from a third party that has no obligation to the Discloser to keep such information confidential; (ii) information that is publicly available prior to the Effective Date, or that subsequently becomes publicly available through no breach of this Agreement or wrongful act of Recipient; (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations; or (iv) information that Recipient can demonstrate (through written records) was independently developed by it by individuals employed or engaged by Recipient who did not participate in any meetings with the Discloser and who developed such without having had any access to, or the benefit of, Discloser’s Confidential Information.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel, subcontractors or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, who are directed to hold the Confidential Information in the strictest confidence, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take all necessary precautions and measures to safeguard the other Party’s Confidential Information as may be reasonable in the circumstances to prevent improper use or disclosure of the Discloser’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. Recipient shall be responsible for any breach of this Section 10 by any of its personnel, subcontractors or affiliates.
- Exceptions to Confidentiality. Notwithstanding Section 10(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Cohere, to potential assignees, acquirers or successors of Cohere if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Cohere.
- Return or Destruction. Upon Cohere’s request, Customer shall return or dispose of any tangible records of Cohere’s Confidential Information as directed by Cohere promptly and Customer shall certify that it has returned or disposed of, as the case may be, all such Confidential Information.
- Warranty; Disclaimer; Indemnity
- Customer Warranty. Customer represents and warrants to, and covenants with Cohere that: (i) Customer Data will not contain any Personal Information, other than as required by Cohere: (A) in order to provide Support Services; or (B) as part of its onboarding process as further set out in Section 7; (ii) for any Customer Data that does contain Personal Information as set out in Section 11(a)(i) or any Customer Data that contains Personal Information that is inadvertently or accidently provided to Cohere, such Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, including applicable Privacy Laws, to enable Cohere to: (A) provide the Cohere API SaaS Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, which may include transmissions by or to Cohere and to or from all applicable third parties; and (B) otherwise exercise its rights under this Agreement, including with respect to the disclosure of Personal Information to third parties as described in Section 3; and (iii) Customer will not use the Cohere API SaaS Services or the Cohere API for personal, family or household purposes.
- GENERAL DISCLAIMER. COHERE DOES NOT WARRANT THAT THE COHERE API SAAS SERVICES WILL BE UNINTERRUPTED OR THAT THE COHERE API SAAS SERVICES OR THE COHERE API WILL BE ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COHERE API SAAS SERVICES OR THE COHERE API. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE COHERE API SAAS SERVICES AND THE COHERE API (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY COHERE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, COHERE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, COHERE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY CONTENT PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE COHERE API SAAS SERVICES OR THE COHERE API (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Customer Indemnity. Customer will defend, indemnify and hold harmless Cohere, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all Losses directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; or (iii) use of the Cohere API SaaS Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Cohere in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Cohere.
- Cohere Indemnity. Cohere will defend, indemnify and hold harmless the Customer, its employees, officers, directors, affiliates, agents, contractors, successors and assigns against any and all Losses arising from a Claim by a third party alleging that:
- The Cohere API SaaS Services; or
- the access to or use by the Customer or any Permitted User of the Cohere API SaaS Services as permitted pursuant to this Agreement,
infringes, violates or misappropriates any intellectual property right of such third party. The obligations of Cohere in this subsection (c) will not apply to the extent that a Claim by a third party is: (i) based on the unauthorized use by the Customer (or any Permitted User) of the Cohere API SaaS Services in a manner not permitted by this Agreement, if such Claim would not have arisen but for such unauthorized use by the Customer (or its Permitted Users); or (ii) based on the Modification of any deliverables by or on behalf of the Customer in a manner not permitted by this Agreement, if such claim would not have arisen but for such Modification.
- Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE COHERE API SAAS SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (AND IN THE CASE OF CUSTOMER, INCLUDING ANY PERMITTED USER) FOR: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) INACCURATE INFORMATION, LOST PROGRAMS OR DATA (INCLUDING ANY CUSTOMER DATA) OR ANY OTHER LOSS INCURRED IN CONNECTION WITH THE USE, INABILITY TO USE, OR MISUSE OF THE COHERE API SAAS SERVICES BY CUSTOMER (V) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (VI) PERSONAL INJURY OR DEATH; (VII) LOSSES RESULTING FROM THE ACCESS, COLLECTION, USE, PROCESSING, STORING, DISCLOSING, OR TRANSMITTING OF API DATA OR FINETUNING DATA BY THIRD PARTIES ;OR (VIII) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY EVEN IF THE LIABLE PARTY KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- Term and Termination
- Term. This Agreement will commence on the Effective Date and continue to be in effect for a period of six months or such other period of time set out in the applicable Order Form, unless terminated earlier pursuant to this Agreement (the “Initial Term”). The Initial Term will automatically renew for successive one-month periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party provides the other Party with written notice of its intention not to renew not less than 15 days prior to the end of the Initial Term or then-current Renewal Term.
- Termination for Convenience. Either Party may terminate this Agreement at any time via the Website.
- Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement if the other Party commits a material breach of this Agreement and fails within 15 calendar days after receipt of notice of such breach to correct such material breach.
- Effect of Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately cease accessing or using the Cohere API SaaS Services. Within 30 calendar days following termination, Cohere will, at Customer’s request, delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Cohere to provide the Cohere API SaaS Services, including any Custom Models. Notwithstanding the foregoing, Cohere will have no obligation to delete or otherwise render inaccessible any API Data or Finetuning Data submitted by Customer to Cohere in accordance with Section 3(a)(iii).
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 9 (Fees and Payment), Section 10 (Confidential Information), Section 11 (Warranty; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 13(e) (Survival), and Section 14 (General Provisions).
- General Provisions
- Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Cohere, to the following address:
49 Spadina Avenue, Unit 400
Toronto, Ontario M5V 0K3
and (ii) if to Customer, to the current postal or email address that Cohere has on file with respect to Customer. Cohere may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Cohere current at all times during the Term.
- Publicity. Notwithstanding any other term of this Agreement, Cohere may refer to Customer as a customer of Cohere in announcements, press or marketing releases, publications, presentations, case studies and other public statements and on Cohere’s Website and other online channels (collectively, “Publicity”), without notice to or prior written consent of Customer. Cohere may use Customer’s name, logo and trademark in conjunction with any Publicity and disclose the existence of this Agreement, the Cohere API SaaS Services provided to Customer and any testimonials received from Customer in any such Publicity. Customer grants Cohere a limited, perpetual, fully paid-up, irrevocable, non-exclusive, non-transferable, and non-sublicensable license to use its logo and trademarks in connection with any Publicity.
- Assignment. Customer will not assign this Agreement to any third party without Cohere’s prior written consent. Cohere may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
- Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Cohere from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
- Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Cohere API SaaS Services.
- Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, means the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Cohere’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
- Entire Agreement. This Agreement, along with any confidential disclosure agreement entered into by the Parties that references this Agreement, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
- Amendments. NO AMENDMENT, SUPPLEMENT, MODIFICATION, WAIVER, OR TERMINATION OF THIS AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY SPECIFIED IN THIS AGREEMENT, NO CONSENT OR APPROVAL BY CUSTOMER WILL BE BINDING UNLESS EXECUTED IN WRITING BY COHERE. COHERE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY COHERE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.