Introducing Command R+: Our new, most powerful model in the Command R family.
Commercial SaaS Agreement
Last updated: February 29, 2024
COHERE SOFTWARE AS A SERVICE AGREEMENT
Last updated: February 29, 2024
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, Ontario 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 ITS 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.
(a)
“Administrator Accounts” has the meaning set out in Section 7.
(b)
“Agreement” has the meaning set out on the first page of this
Agreement.
(c)
“API Data” means any Customer Data submitted by Customer to the
Cohere API.
(d)
“API Key” has the meaning set out in Section 4(a)(i).
(e)
“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.
(f)
“BCI” means business contact information
that consists of the name and business telephone, address and email address of
a Permitted User.
(g)
“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.
(h)
“Cohere” has the meaning set out on the first page of this
Agreement.
(i)
“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.
(j)
“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.
(k)
“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.
(l)
“Cohere Property” has the meaning set out in Section 3(c).
(m)
“Confidential Information” has the meaning set out in Section 10(a).
(n)
“Content” means any data, information, content, records, or files.
(o)
“Custom Model” means an AI-powered neural network for natural
language processing based on parameters that are trained using Customer Data.
(p)
“Customer” has the meaning set out on the first page of this
Agreement.
(q)
“Customer Application” has the meaning set out in Section 4(a)(iii).
(r)
“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, BCI, 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.
(s)
“Customer User Account” has the meaning set out in Section 7.
(t)
“Discloser” has the meaning set out in Section 10(a).
(u)
“Effective Date” has the meaning set out on the first page of this
Agreement.
(v)
“Feedback” has the meaning set out in Section 3(a).
(w)
“Fees” has the meaning set out in Section 9(a).
(x)
“Finetuning Data” means any Customer Data comprised of training or
finetuning data submitted by Customer to the Cohere API SaaS Services.
(y)
“Force Majeure” has the meaning set out in Section 14(g).
(z)
“Initial Term” has the meaning set out in Section 13(a).
(aa)
“Licensed Third Party Technology” means third party technology that
is licensed under separate license terms and not under this Agreement.
(bb)
“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).
(cc)
“Modifications” means
modifications, improvements, customizations, patches, bug fixes, updates,
enhancements, aggregations, compilations, derivative works, translations and
adaptations, and “Modify” has a
corresponding meaning.
(dd)
“Order Form” means any order form that references this Agreement and
that is executed by authorized signing officers of each Party.
(ee)
“Parties” and “Party”
have the meaning set out on the first page of this Agreement.
(ff)
“Permitted User” means those employees and independent contractors
authorized by Customer on Customer’s behalf to access and use the Cohere API SaaS Services.
(gg)
“Personal Information” means any information about an identifiable
individual (including information that could, alone or in combination with
other information, identify an individual).
(hh)
“Privacy Laws” means all applicable federal, provincial,
state and local laws, rules and regulations concerning the privacy and security
of Personal Information, including, without limitation, the requirements of the
Personal Information Protection and
Electronic Documents Act.
(ii)
“Privacy Policy” has the meaning set out in Section 5(a).
(jj)
“Professional Services” has the meaning set out in Section 2(g).
(kk)
“Prohibited Data” means any Personal Information other than BCI.
(ll)
“Publicity” has the meaning set out in Section 14(b).
(mm)
“Recipient” has the meaning set out in Section 10(a).
(nn)
“Renewal Term” has the
meaning set out in Section 13(a).
(oo)
“Responsible Use Guidelines” means: (a) the model cards, available
at https://docs.cohere.com/docs/generation-card; (b) the data statement, available at https://docs.cohere.com/docs/data-statement; and (c) the usage guidelines, available at
https://docs.cohere.com/docs/usage-guidelines.
(pp)
“Support Services” has the meaning set out in Section 8.
(qq)
“Term” has the meaning set out in Section 13(a).
(rr)
“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.
2.
Cohere API SaaS Services
(a)
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.
(b)
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.
(c)
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.
(d)
Restrictions on Use. Customer will not itself, and will not permit others to:
(i) 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;
(ii) 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;
(iii) 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;
(iv) use the Cohere API to circumvent the intended features, functionality or limitations of the Cohere API SaaS Services, including any content filters or safety controls and mechanisms;
(v) use the Cohere API SaaS Services or the Cohere API for personal, family or household purposes;
(vi) 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) are 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) replicate or attempt to replace the essential user experience of the Cohere API SaaS Services or any of Cohere’s other products or services; (F) are in any manner t similar to, or competitive with, the Cohere API SaaS Services; or (G) otherwise violate any applicable law;
(vii) 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;
(viii) use the Cohere API SaaS Services to generate political propaganda;
(ix) 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;
(x) use the Cohere API SaaS Services to impersonate any person in violation of such person’s privacy or personality rights;
(xi) use the Cohere API SaaS Services to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B)
that Customer does not have the
lawful right to create, collect, transmit, store, use or process;
(C) that contains any Prohibited Data, except in accordance with Section 5(b); or
(D) 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);
(xii) Modify, reverse engineer, de-compile, disassemble or otherwise alter the Cohere API SaaS Services or the Cohere API;
(xiii) remove or obscure any proprietary notices or labels on the Cohere API SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
(xiv) access or use the Cohere API SaaS Services in violation of the Responsible Use Guidelines;
(xv) 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
(xvi) perform any vulnerability, penetration or similar testing of the Cohere API SaaS Services or Cohere API.
(e)
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:
(i)
suspend Customer’s access to or
use of the Cohere API SaaS Services:
(A)
for scheduled maintenance;
(B)
due to a Force
Majeure;
(C)
if Customer is delinquent in its
payment of Fees under Section 9;
(D)
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 that are posted on the Website;
(E)
to address any emergency security
concerns; or
(F)
if required to do so by a
regulatory body or as a result of a change in applicable law;
(ii)
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
(iii)
make any Modifications to the
Cohere API SaaS Services.
(f)
Subcontracting. Cohere may engage third parties, including cloud service
providers, to provide the Cohere API SaaS Services.
(g)
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 (the “Professional Services”)
as may be set out in an Order Form.
3.
Ownership; Reservation of Rights
(a)
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.
(b)
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.
(c)
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.
(d)
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:
(i)
the Feedback does not contain
confidential or proprietary information and Cohere is
not under any obligation of confidentiality with respect to the Feedback; and
(ii)
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.
(a)
Use of the Cohere API and Cohere API Documentation
(i)
API Keys Required to Access the Cohere API. In order to use 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.
(ii)
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.
(iii)
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”).
(iv)
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.
(v)
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.
(vi)
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.
(b)
Monitoring Usage of API
(i)
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.
(ii)
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.
5.
Privacy
(a)
Customer understands that BCI of
Permitted Users will be treated in accordance with Cohere’s
privacy policy located at https://cohere.com/privacy (the “Privacy
Policy”).
(b)
Customer shall not include any
Prohibited Data in any Customer Data. Without limiting the foregoing, to the
extent that Customer requires Cohere to process or otherwise handle any
Prohibited Data, then Customer shall first notify Cohere of such intent and Cohere may, in its sole discretion, choose to process such
Prohibited Data subject to a separate definitive agreement entered into by the
Parties. This Agreement imposes no
obligation on, nor
does it compel, Cohere to agree to any such separate definitive agreement for
processing of any Prohibited Data.
6.
Communications Over the Internet and Public Networks
Given the inherent nature of the
internet and public networks, and without limiting the Privacy Policy
referenced herein, Cohere does not, and cannot,
guarantee the security of data transmitted or the confidentiality of any
communications made by Customer or any Permitted User over the Internet or
public networks in connection with your use of the Cohere API SaaS Services.
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 support@cohere.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.
(a)
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.
(b)
Changes to the Fees. Cohere will
provide Customer with no less than seven days notice
of any changes to the Fees.
(c)
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.
(d)
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.
(e)
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.
(f)
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.
(g)
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(e)
or 9(e), will not excuse Customer from its obligation to make payments under
this Agreement.
(a)
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.
(b)
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.
(c)
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.
(d)
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.
11.
Warranty; Disclaimer; Indemnity
(a)
Customer Warranty. Customer
represents and warrants to, and covenants with Cohere that, subject to Section
5(b): (i) Customer Data will not contain any
Prohibited Data; and (ii) without limiting Section 11(a)(i),
to the extent Customer Data contains any Personal Information, Customer has, in
respect of any such Personal Information, 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.
(b)
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.
(c)
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; (ii) Customer’s breach of
Sections 2(d) or 5(b); or (iv) 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.
(d)
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:
(i)
The Cohere API SaaS Services; or
(ii)
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 (d) 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); (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; or (iii) based on the Outputs infringing, violating or
misappropriating copyright rights of a third party, in which case the Copyright
Assurance will apply.
(e)
Cohere Copyright Assurance
(i)
Subject to paragraph (ii) below,
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 Claims by a third party alleging that
any data, information, content, or records that are created or generated from a
Baseline Model or Custom Model (“Outputs”) infringes, violates or
misappropriates any copyright rights of a third party in the amount of any
adverse final judgement or settlement as Customer’s sole and exclusive remedy
in connection with such Claims (“Copyright
Assurance”).
(ii)
The Copyright Assurance will not
apply if:
(A)
Customer is late in paying any
Fees that have become due and payable;
(B)
Customer has breached the terms
this Agreement;
(C)
Customer is, in Cohere’s reasonable discretion, intentionally making use of the Cohere API SaaS Services
to generate Outputs that may infringe, violate or misappropriate the copyright
of a third party;
(D)
the Claim was a result of any
finetuning or Modifications of the Cohere API SaaS Services by Customer; or
(E)
Customer continues to use the
Outputs: (I) if Customer knows or should reasonably know that the Outputs are infringing,
misappropriating, or violating the copyright rights of a third party; or (II)
notwithstanding having received notice of the Outputs infringing,
misappropriating, or violating the copyright rights of a third party.
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:
(a) EXCEPT FOR THE COPYRIGHT ASSURANCE, 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.
(b) EXCEPT FOR THE COPYRIGHT ASSURANCE, 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.
(a)
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.
(b)
Termination for Convenience. Either Party may terminate this Agreement at any time
via the Website.
(c)
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.
(d)
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).
(e)
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 5 (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).
(a)
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:
171 John Street, Suite 200
Toronto, ON M5T 1X3
Email: legal@cohere.com with a copy to support@cohere.com.
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.
(b)
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.
(c)
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.
(d)
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.
(e)
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.
(f)
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.
(g)
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”).
(h)
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.
(i)
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.
(j)
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.
(k)
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.
(l)
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).
(m)
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.