Terms of Service - April 2024

SPELLBOOK TERMS OF SERVICE

Updated: April 26, 2024

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (this “Agreement”) by and between Dialog Enterprises Inc., a corporation whose principal place of business is 100 Signal Hill Road, St. John’s, NL, A1A 1B3, Canada, carrying on business as Spellbook (“Spellbook”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”), each a “Party” and collectively the “Parties”.

This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of, and Spellbook’s provision of, the Spellbook AI Platform (as defined below in Section 1.13) are both governed by this Agreement.

THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.

1.  DEFINITIONS. The following capitalized terms will have the following meanings in this Agreement:

1.1.     “AI” means artificial intelligence.

1.2.     “Contract Data” means contract data and text collected, processed, and/or stored through the Spellbook AI Platform by Customer or its Users.

1.3.     “Customer Data” means data and information collected, processed, and/or stored on the Spellbook AI Platform specific to the Customer or its Users as a result of their interaction with the Spellbook AI Platform, including input prompts and feedback provided within the Spellbook AI Platform.

1.4.     “Customer Usage Data” means the combination of Contract Data and Customer Data stored and processed by the Spellbook AI Platform.

1.5.     “Documentation” means any proprietary materials, documents, or other information that Spellbook provides or makes available to Customer relating to the use of the Spellbook AI Platform.

1.6.     “Initial Term” has the meaning in section 11.1.

1.7.     “LLM” means a large language model, which is a type of AI algorithm that uses deep learning techniques and massively large data sets to understand, summarize, generate and predict new content.

1.8.     “Order” means an order for access to the Spellbook AI Platform, which is signed by both Parties and references these Terms of Service.

1.9.     “Output” means the AI-generated textual content or response to a Customer prompt, submission, or direction via the Spellbook AI Platform.

1.10.   “Personal Data” generally means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

1.11.   “Privacy/Security Laws” means any applicable global privacy and security laws and/or regulations governing Spellbook’s handling of Personal Data for the Customer.

1.12.   “Renewal Term” has the meaning in section 11.1.

1.13.   “Spellbook AI Platform” means Spellbook’s AI software-as-a-service application identified in any Order that allows Users to access certain features and functions through a web interface, particularly using AI to draft, review, suggest, and modify contract language in Microsoft Word.

1.14.   “Third Party LLM” means any third party LLM currently used by Spellbook to process Customer Usage Data to generate Output in the Spellbook AI Platform for the Customer and its Users.

1.15.   “User” means any individual who uses the Spellbook AI Platform on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.

2.  THE SPELLBOOK AI PLATFORM.

2.1.     Authorization to Access and Use the Spellbook AI Platform.

(a)      Commencing on the Effective Date, Spellbook will make the Spellbook AI Platform available for Customer’s access within the use limitations set forth in the Order, all under the terms of this Agreement.

(b)     Subject to the terms and conditions of this Agreement, Spellbook (i) grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Spellbook AI Platform, and (ii) authorizes the Customer to permit the number of Users specified in the Order to use the Spellbook AI Platform solely for the Customer’s internal purposes.

2.2.     Support and Updates. At no charge to Customer, Spellbook will (a) provide support for the use of the Spellbook AI Platform to Customer, and (b) keep the Spellbook AI Platform operational and available to Customer, including installing on its servers any software updates deemed reasonably necessary to address errors, bugs, or other performance issues in the Spellbook AI Platform.

2.3.     Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Spellbook AI Platform.

2.4.     Feature Revisions. Spellbook may revise Spellbook AI Platform features and functions at any time, including without limitation by removing such features and functions. If any such revision to the Spellbook AI Platform materially reduces features or functionality provided pursuant to an outstanding Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.

3.  PAYMENT.

3.1.     Subscription Fees.

(a)      Customer will pay Spellbook the fees stipulated in each Order (the “Subscription Fees”) for each Term. Spellbook’s invoices are due within 30 days of issuance. Customer will maintain complete, accurate and up-to-date billing and contact information at all times.

(b)     Notwithstanding the Subscription Fees stipulated in an Order, Spellbook reserves the right to increase the Subscription Fees for each Renewal Term upon at least 30 days’ notice to the Customer (and any applicable Order will be deemed to be amended accordingly); however, any such annual increases to Subscription Fees will not exceed 10%, unless there has been a change that materially alters the functionality, features, or scope of the Spellbook AI Platform (and/or the services Spellbook is providing to the Customer in relation to the Spellbook AI Platform).

(c)      For late payment, Customer will pay interest charges from the time the payment was due at the rate that is the lower of 2% per month or the highest rate permissible under applicable law. Spellbook will not be required to refund the Subscription Fees under any circumstances.

(d)     Except as otherwise specified in this Agreement, Subscription Fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the active term of the Order. For more details, Spellbook’s refund policy is available here.

3.2.     Suspension for Non-Payment. Spellbook reserves the right (in addition to any other rights or remedies Spellbook may have) to suspend all Customer access to the Spellbook AI Platform if any Subscription Fees are overdue, until such amounts are paid in full.

3.3.     Taxes. Subscription Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Spellbook AI Platform (collectively, “Sales Taxes”). Customer will be solely responsible for the payment of any Sales Taxes. In the event Spellbook is required for any reason to pay Sales Taxes on Customer’s behalf, Customer will promptly reimburse Spellbook for all amounts paid.

4.  DATA, SECURITY & PRIVACY.

4.1.     Processing of Customer Usage Data. Spellbook must process Customer Usage Data in certain ways to power the Spellbook’s product features and ensure adequate functionality of the Spellbook AI Platform, including sending Contract Data to LLMs to generate Output. In doing so, however, Spellbook will not share Customer Usage Data with other Spellbook customers or third parties for any purposes except those provided below. Accordingly:

(a)      Regarding data processing by Third Party LLMs, Customer understands, acknowledges, and consents to the following:

(i)         Data Transmission and Retrieval. Spellbook transmits Customer Usage Data (particularly Contract Data and User prompts) to its Third Party LLM in order to generate Output, and retrieves Output from the LLMs to provide to the Customer; all such transmitted and retrieved Customer Usage Data is encrypted in transit according to industry standard encryption protocols.

(ii)       Data Protection by LLMs. Spellbook only transmits Customer Usage Data as needed to Third Party LLMs to deliver the Spellbook AI Platform’s necessary functionality to the Customer as contemplated in the Order. In each case, Spellbook has executed a data processing agreement with those Third Party LLMs to ensure they are responsible for processing Customer Usage Data in compliance with Privacy/Security Laws.

(iii)      No Third Party LLM Model Training. Customer Usage Data transmitted by Spellbook to Third Party LLMs is not used to train the AI models of those Third Party LLMs. Spellbook has opted out of all available options to do so, as applicable, for each Third Party LLM.

(b)     Regarding Spellbook’s internal data processing activities, Customer understands, acknowledges, and consents to the following:

(i)         General Data Processing. Spellbook only collects, processes, stores, or otherwise uses Customer Usage Data as necessary to perform the features and functions of the Spellbook AI Platform that the Customer has purchased in an Order, or perform other activities specifically requested by its Users. For example, Spellbook collects and processes feedback voluntarily provided by Users to optimize product features for that User according to their feedback, or address any performance issues associated with such feedback. However, any unique Customer Usage Data stored and processed for a Customer and its Users will not be visible or accessible to other Spellbook customers.

(ii)       Analytics Data. Spellbook collects and analyzes non-identifying analytics data, such as Users’ quantitative usage metrics (e.g. monitoring clicks on a new feature) and other statistical information, relating to the Customer’s use and performance of various aspects of the Spellbook AI Platform, and analyzes such data to improve and enhance the Spellbook AI Platform, as well as to diagnose and correct issues associated with the Spellbook AI Platform.

(iii)      Improving Product Features. Spellbook may process stored Customer Usage Data to directly improve the quality of (and/or customize the experience of) the Customer’s available product features on the Spellbook AI Platform. This may include training internal AI models for general product improvement or Customer-specific personalization. Spellbook will, by default, collect and process Customer Data to customize each Customer’s experience according to how its Users interact with the Spellbook AI Platform (including the input they provide, such as prompts or document sections, and the Outputs they receive in response). Customers can request to opt out of Spellbook’s use of Customer Usage Data for particular Spellbook product features. However, if the Customer opts out of any particular use of Customer Usage Data, Customer acknowledges that it will experience reduced feature availability, functionality or specificity as a result.

4.2.     Data Ownership.

(a)      As between the Parties, the Customer owns: (i) all Customer Usage Data uploaded by Customer or its Users to the Spellbook AI Platform; and (ii) all Outputs.

(b)     Spellbook will treat Customer Usage Data as Confidential Information under Article 7, and will not disclose Customer Usage Data to any other customers or third parties, other than (i) to its data subprocessors as necessary to provide the services stipulated in the Order, or (ii) to its employees and authorized contractors on a need-to-know basis under obligations of confidentiality.

(c)      Customer grants to Spellbook a non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer and display Customer Usage Data solely for the purpose of providing the services of the Spellbook AI Platform to Customer on the terms of the Order.

(d)     Notwithstanding the foregoing, Spellbook may use Customer Usage Data to compile, use, and disclose anonymous, aggregated statistics, provided that no such information will directly identify and cannot reasonably be used to identify Customer or its Users or end clients of the Customer (the “Derived Data”). Spellbook will own all right, title, and interest in all of the Derived Data and all resulting Spellbook products or services incorporating the Derived Data.

4.3.     Spellbook’s Data Security.

(a)      Spellbook maintains reasonable administrative, technical, and physical safeguards to protect all Customer Usage Data (including Personal Data) processed, stored, collected or transmitted by Spellbook. Spellbook maintains a data security trust center available here, which (i) sets out all of Spellbook’s data security protocols, (ii) provides information on the data processing commitments of the LLMs used by Spellbook, and (iii) provides a list of Spellbook’s data subprocessors and related processing purposes. Further, a copy of Spellbook’s current security policy is available upon request.

(b)     Spellbook exercises diligent efforts to prevent unauthorized disclosure or exposure of Customer Usage Data. Accordingly, Spellbook will, on an ongoing basis, ensure that its data security program (and associated safeguards and privacy practices) are designed, maintained, updated and adjusted, as necessary, to protect against reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer Usage Data.

(c)      Regardless of its data security protocols, Spellbook will have no responsibility or liability for (i) the accuracy of Customer Usage Data uploaded to the Spellbook AI Platform by Customer and its Users, or (ii) Customer’s usage of, or reliance on, Outputs.

(d)     Notwithstanding anything else in this Article 4, Spellbook may be compelled to disclose Customer Usage Data as required by applicable law or by proper legal or governmental authority. In such cases, Spellbook will give Customer prompt notice of the legal or governmental demand/order for disclosure, and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure.

(e)      Spellbook complies with all Privacy/Security Laws that are applicable both specifically to Spellbook and generally to data processors in the jurisdictions in which Spellbook does business.

4.4.     Customer’s Personal Data.

(a)      Spellbook collects and uses categories of Personal Data from the Customer and its Users that are required to administer Customer’s Spellbook account, including payment records and credit cards.

(b)     Customer acknowledges that Spellbook’s management of Customer’s Personal Data is governed by its privacy policy available here, and Customer recognizes and agrees that nothing in this Agreement restricts Spellbook’s right to alter its privacy policy as required by Spellbook or by Privacy/Security Laws.

(c)      As part of administering the Customer’s account, Spellbook may disclose Personal Data to certain subprocessors when necessary, and these subprocessors (and their purposes) are identified in Spellbook’s data security trust center here.

5.  CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

5.1.     Acceptable Use.

(a)      Customer will not:

(i)         use the Spellbook AI Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Spellbook AI Platform;

(ii)       provide Spellbook AI Platform passwords or other log-in information to any third party, or allow access to the Spellbook AI Platform by multiple individuals impersonating a single User;

(iii)      share non-public Spellbook AI Platform features or content with any third party;

(iv)      attempt to circumvent or disable any security features or functionality associated with the Spellbook AI Platform;

(v)       access the Spellbook AI Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Spellbook AI Platform, or to copy any ideas, features, functions or graphics of the Spellbook AI Platform; or

(vi)      engage in web scraping or data scraping on or related to the Spellbook AI Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.

(b)     In the event that Spellbook suspects any breach of the requirements of this Section 5.1(a), including without limitation by Users, Spellbook may suspend Customer’s access to the Spellbook AI Platform without advance notice, in addition to such other remedies as Spellbook may have.

5.2.     Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Spellbook AI Platform, including without limitation by protecting its passwords and other log-in information. Customer will notify Spellbook immediately of any known or suspected unauthorized use of the Spellbook AI Platform or breach of its security and will use best efforts to stop said breach.

5.3.     Compliance with Laws. In its use of the Spellbook AI Platform, Customer will comply with all applicable laws, including without limitation Privacy/Security laws.

5.4.     Non-Lawyer Reliance on Spellbook Output. If Customer is not a duly licensed and qualified lawyer or does not operate under the direction, control, or supervision of a duly licensed and qualified lawyer, Customer acknowledges that in its use of the Spellbook AI Platform, it (or its Users) will not solely rely on Output as constituting formal legal advice, and will always ensure that any Output is reviewed or vetted accordingly by a duly licensed and qualified lawyer.

5.5.     Users & Spellbook AI Platform Access. Customer is responsible and liable for: (a) Users’ use of the Spellbook AI Platform, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Spellbook AI Platform through Customer’s account, whether authorized or unauthorized.

5.6.     Customer Rights and Consents. Customer confirms that it has and will maintain throughout the Term all necessary rights, consents and authorizations to provide the Customer Usage Data to Spellbook and to authorize Spellbook to use, disclose, or otherwise process that Customer Usage Data  through the Spellbook AI Platform as contemplated by this Agreement.

5.7.     Marketing and Promotion. Unless indicated otherwise by Customer, Customer will allow Spellbook to use the name and logo of Customer in its marketing and promotional activities, including being posted on Spellbook’s web site, on social media, and in its marketing and advertising materials.

6.  IP & FEEDBACK.

6.1.     IP Rights to the Spellbook AI Platform.

(a)      Spellbook retains all right, title, and interest in and to the Spellbook AI Platform, including without limitation all intellectual property rights in (i) the software used to provide the Spellbook AI Platform, and (ii) all graphics, user interfaces, logos, and trademarks reproduced through the Spellbook AI Platform.

(b)     This Agreement does not grant Customer any intellectual property license or rights in or to the Spellbook AI Platform or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the Spellbook AI Platform as specifically authorized by this Agreement. Customer recognizes that the Spellbook AI Platform and its components are protected by copyright and other laws.

6.2.     Feedback.

(a)      Spellbook has not agreed to and does not agree to treat as confidential any suggestions or ideas for improving or otherwise modifying any of Spellbook’s products or services that Customer or Users give Spellbook (“Feedback”).

(b)     Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Spellbook’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer; for greater certainty, Feedback will not be considered in any way to be Customer’s trade secret.

7.  CONFIDENTIAL INFORMATION.

7.1.     Scope of Confidential Information.

(a)      For the purposes of this Section 7, “Confidential Information” refers to the following items either Party (the “Discloser”) discloses to the other Party (the “Recipient”): (a) any document the Discloser marks “confidential” or designates as “confidential” at the time of its disclosure; (b) the Documentation, whether or not marked or designated confidential; (c) any other non-public, sensitive information the Discloser should reasonably consider a trade secret or otherwise confidential; and (d) Customer Usage Data.

(b)     Exclusions. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by the Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; (iv) is approved by Discloser in writing for release by Recipient; or (iv) Feedback from the Customer.

7.2.     Non-Disclosure.

(a)      Recipient will not use Confidential Information for any purpose other than as specified and agreed by the Discloser at the time of disclosure (the “Purpose”).

(b)     Recipient: (i) will not disclose Confidential Information of the Discloser to any of its employees or contractors, unless such person needs access in order to facilitate the Purpose and also understands the Confidential Information comes with obligations of confidentiality; and (ii) will not disclose Confidential Information to any other third party without Discloser’s prior written consent.

(c)      Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.

7.3.     Compelled Disclosure. Notwithstanding Section 7.2, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; however, in such circumstances. Recipient will give Discloser prompt notice of any such legal or governmental demand, and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

7.4.     Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.2 above (Non-Disclosure) will terminate 5 years after the expiration or termination of this Agreement; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient will destroy Discloser’s Confidential Information in its possession or control.

7.5.     Injunction. Recipient agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to Discloser; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 7.5 does not limit either Party’s right to injunctive relief for breaches not listed.

7.6.     Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license to it. Discloser will retain all right, title, and interest in and to all Confidential Information.

8.  REPRESENTATIONS & WARRANTIES.

8.1.     From Spellbook.

(a)      Spellbook represents and warrants that it is the owner of the Spellbook AI Platform (and every component of it), or alternatively the recipient of a valid license to it, and that it has and will maintain the full power and authority to grant the rights to use the Spellbook AI Platform set forth in this Agreement without the further consent of any third party.

(b)     Spellbook’s representations and warranties in the preceding sentence do not apply to the Customer’s use of the Spellbook AI Platform in combination with hardware or software not provided by Spellbook.

(c)      In case of breach of the warranty above in this Section 8.1(a), Spellbook, at its own expense, will promptly:

(i)         secure for Customer the right to continue using the Spellbook AI Platform;

(ii)       replace or modify the Spellbook AI Platform to make it non-infringing; or

(iii)      if such remedies are not commercially practical in Spellbook’s reasonable opinion, refund the Subscription Fees paid for the Spellbook AI Platform for every month remaining in the then-current Term following the date after which Customer access to the Spellbook AI Platform ceases as a result of such breach of warranty.

(d)     If Spellbook exercises its rights pursuant to Subsection 8.1(c) above, Customer will promptly cease all use of the Spellbook AI Platform and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Spellbook’s entire liability for breach of the warranty above in this Section 8.1.

8.2.     From Customer. Customer represents and warrants that:

(a)      it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement;

(b)     it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Spellbook AI Platform; and

(c)      it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3.     Disclaimers.

(a)      Except to the extent set forth in Spellbook’s warranty in Section 8.1 above, CUSTOMER ACCEPTS THE SPELLBOOK AI PLATFORM “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

(b)     WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:

(i)         SPELLBOOK DOES NOT REPRESENT OR WARRANT THAT THE SPELLBOOK AI PLATFORM WILL PRODUCE ACCURATE OR RELEVANT CONTENT FOR THE CUSTOMER, OR OTHERWISE PERFORM WITHOUT INTERRUPTION OR ERROR;

(ii)       WHILE MAINTAINING REASONABLE DATA SECURITY MEASURES AS PER SECTION 4.2, SPELLBOOK CANNOT GUARANTEE THAT THE SPELLBOOK AI PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, OR THAT CUSTOMER USAGE DATA WILL REMAIN PRIVATE OR SECURE UPON SUCH HACKING OR INTRUSION;

(iii)      SPELLBOOK DOES NOT REPRESENT THAT THE OUTPUT GENERATED BY THE SPELLBOOK AI PLATFORM WILL BE SATISFACTORY IN ANY WAY TO CUSTOMER (ESPECIALLY IF CUSTOMER ATTEMPTS TO GENERATE OUTPUT IN LANGUAGES OTHER THAN ENGLISH, OR THAT IS NOT TEXT IN CONTENT); AND

(iv)      SPELLBOOK HAS NO CONTROL OVER THE OPERATION OF THE THIRD PARTY LLMS IT ACCESSES AS PART OF ITS PROCESSING ACTIVITIES, THE OUTPUTS THEY GENERATE, OR THE CONTINUED AVAILABILITY OF ANY THIRD PARTY LLMS.

(c)      THE OUTPUT IS INTENDED TO PROVIDE PRACTICAL AND USEFUL INFORMATION ON THE SUBJECT MATTER COVERED BASED ON CUSTOMER PROMPTS AND OTHER INPUTS. WHILE SUCH OUTPUT MAY CONCERN ISSUES RELATED TO LEGAL SERVICES OR DOCUMENTS, SUCH CONTENT IS NOT FORMAL LEGAL ADVICE. CUSTOMER WILL NOT RELY ON ANY OUTPUT OF THE SPELLBOOK AI PLATFORM WITHOUT SEEKING THE ADVICE OF, AND/OR VETTING ANY OUTPUT THROUGH, A DULY LICENSED AND QUALIFIED LAWYER IN THE APPLICABLE SUBJECT MATTER AND JURISDICTION. SPELLBOOK EXPRESSLY DISCLAIMS ALL LIABILITY IN RESPECT OF CUSTOMER OR USER ACTIONS TAKEN OR NOT TAKEN BASED ON ANY OUTPUT, OR OTHERWISE IN CONNECTION WITH CUSTOMER’S USE OF THE SPELLBOOK AI PLATFORM. SPELLBOOK’S PROVISION OF THE SPELLBOOK AI PLATFORM, INCLUDING ALL RELATED OUTPUT, ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THEY DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE FORMAL LEGAL ADVICE.

(d)     CUSTOMER UNDERSTANDS THAT IT, AND ITS USERS, ARE ULTIMATELY RESPONSIBLE FOR ALL DECISIONS MADE, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON CUSTOMER’S USE OF THE SPELLBOOK AI PLATFORM, WHICH USES AI TO GENERATE PREDICTIONS BASED ON PATTERNS IN DATA. OUTPUT GENERATED BY AI (INCLUDING THIRD PARTY LLMS) IS PROBABILISTIC AND SHOULD BE EVALUATED FOR ACCURACY AS APPROPRIATE FOR YOUR USE CASE, INCLUDING BY ENSURING QUALIFIED LAWYER REVIEW OF SUCH OUTPUT.

9.  INDEMNIFICATION.

9.1.     Indemnification by Spellbook.

(a)      Spellbook will defend Customer from any third party claim alleging that Customer’s use of the Spellbook AI Platform as contemplated in this Agreement infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer from and against any damages and costs awarded against them, or agreed in settlement by Spellbook, resulting from such IP Claim.

(b)     Spellbook will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Spellbook AI Platform by Customer or its Users; (ii) modification of the Spellbook AI Platform by anyone other than Spellbook or its representatives; (iii) or the combination, operation or use of the Spellbook AI Platform with other data, hardware, or software not provided by Spellbook.

(c)      If Customer’s use of the Spellbook AI Platform results (or in Spellbook’ opinion is likely to result) in an IP Claim, Spellbook may at its own option and expense: (i) procure for Customer the right to continue using the Spellbook AI Platform; (ii) replace or modify the infringing components of the Spellbook AI Platform to make them non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable as determined by Spellbook, then either Customer or Spellbook may terminate Customer’s Order and/or subscription to the Spellbook AI Platform, and in that case Spellbook will refund Customer, on a pro-rated basis, any Subscription Fees that the Customer has previously paid Spellbook for the corresponding unused portion.

(d)     This section 9.1 states Spellbook’s entire liability, and Customer’s exclusive remedy, with respect to an IP Claim.

9.2.     Indemnification by Customer. Customer will defend, indemnify, and hold harmless Spellbook against any third party claim, suit, or proceeding against Spellbook arising out of the Customer’s intentional misuse of the Spellbook AI Platform, including without limitation:

(a)      claims by Users or by Customer’s employees, as well as by Customer’s own customers;

(b)     claims which, if true, would constitute a breach of Section 5 of this Agreement (Customer Obligations); and

(c)      claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Spellbook AI Platform through Customer’s account, including without limitation by Customer Usage Data.

9.3.     Mutual Indemnity – Data Incidents.

(a)      Each Party (the “Offending Party”) will defend and indemnify the other Party against any third party claim, suit, or proceeding arising out of or relating to a Data Incident (defined below) caused by the act or omission of the Offending Party or any of its agents, subcontractors, or employees (a “Data Claim”). For clarity, Data Claims include government enforcement actions.

(b)     For the purposes of this section 9.3, a “Data Incident” is any (i) unauthorized disclosure of, access to, or use of Customer Usage Data, or (ii) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by Spellbook, by Users or other Customer’s customers, by hackers, or by any other third party.

9.4.     General Indemnification Procedures.

(a)      In the event of a potential indemnity obligation under any section of this Article 9, the indemnified Party in each case will:

(i)         promptly notify the indemnifying Party in writing of the claim;

(ii)       allow the indemnifying Party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying Party’s sole cost and expense; and

(iii)      upon request of the indemnifying Party, provide all necessary cooperation at the indemnifying Party’s expense.

(b)     Failure by the indemnified Party to notify the indemnifying Party of a claim will not relieve the indemnifying Party of its obligations, however, the indemnifying Party will not be liable for any litigation expenses that the indemnified Party incurred prior to the time when notice is given (or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying Party in accordance with this section).

(c)      The indemnifying Party’s obligations set forth in this Article 9 include, without limitation:

(i)         settlement at the indemnifying Party’s expense and/or payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and

(ii)       reimbursement of reasonable legal fees incurred by the indemnified Party before indemnifying Party’s assumption of the defense (but not legal fees incurred thereafter).

(d)     Notwithstanding section 9.4(c), the indemnifying Party may not settle any claim that would bind the indemnified Party to any positive obligation (other than payment covered by the indemnifying Party) or require any admission of fault by the indemnified Party, without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed.

(e)      Any indemnification obligation under this Article 9 will not apply if the indemnified Party settles or makes any admission with respect to a claim without the indemnifying Party’s prior written consent.

10.  LIMITATION OF LIABILITY.

10.1.   Dollar Cap. EXCEPT FOR ARTICLE 4 (DATA SECURITY), ARTICLE 7 (CONFIDENTIAL INFORMATION), AND ARTICLE 9 (INDEMNIFICATION), SPELLBOOK’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE CUMULATIVE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

10.2.   Excluded Damages. EXCEPT WITH REGARD TO BREACHES OF ARTICLE 7 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL SPELLBOOK BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3.   Clarifications & Disclaimers.

(a)      THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY TO THE BENEFIT OF SPELLBOOK’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF SPELLBOOK IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION, AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

(b)     Customer acknowledges and agrees that Spellbook has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10, and that such terms form an essential basis of the bargain between the parties.

(c)      If applicable law limits the application of the provisions of this Article 10, Spellbook’s liability will be limited to the maximum extent permissible.

(d)     For the avoidance of doubt, Spellbook’s liability limits and other rights set forth in this Article 10 apply likewise to Spellbook’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11.  TERM & TERMINATION.

11.1.   Term. Unless otherwise specified in the Order:

(a)       the initial term of this Agreement will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one year from the Effective Date of this Agreement (the “Initial Term”); and

(b)     Following the Initial Term, the Term will automatically renew for successive 12-month periods (each a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless either party provides written notice of its intention not to renew at least 30 days prior to the expiration of the then-current term.

11.2.   Termination.

(a)      Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.

(b)     Customer may terminate this Agreement, or any Order or subscription hereunder, for any reason or for no reason by giving 30 days’ prior written notice to Spellbook; provided, however, that if Customer terminates for convenience under this section, Customer remains obligated to pay all Subscription Fees owed for the remainder of the then-current terms, all of which Subscription Fees will become immediately due and payable in full (if not already pre-paid).

11.3.   Effects of Expiration or Termination. Upon expiration or termination of this Agreement for any reason, Customer will cease all use of the Spellbook AI Platform immediately, and delete all copies of the Documentation in its possession or control.

11.4.   Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay Subscription Fees incurred before termination; (b) Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

12.  MISCELLANEOUS.

12.1.   Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make legally bind the other.

12.2.   Notices. Spellbook may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer in the Order, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to info@spellbook.legal, and such notices will be deemed received 24 hours after they are sent.

12.3.   Force Majeure. No delay, failure, or default (other than a failure to pay fees when due), will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.

12.4.   Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Spellbook’s express written consent, unless in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this clause will be null and void. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5.   Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6.   No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7.   Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed by the laws of the Province of Newfoundland and Labrador and the laws of Canada applicable therein, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties. The parties consent to the personal and exclusive jurisdiction of the courts of Newfoundland and Labrador. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.8.   Conflicts. In the event of any conflict between this Agreement and any other Spellbook policy posted online, the terms of this Agreement will govern.

12.9.   Technology Export. Respecting Customers based in the United States, Customer will not: (a) permit any third party to access or use the Spellbook AI Platform in violation of any U.S. law or regulation; or (b) export any software provided by Spellbook or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Spellbook AI Platform in, or export such software to, a country subject to a United States embargo.

12.10.      Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.11.      Supplementary Terms. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which will be deemed incorporated into this Agreement by this reference upon execution of such an addendum. The terms of any addendum will control any conflicting terms in this Agreement or an Order. Unless expressly stated otherwise in an applicable addendum, all addenda executed between the Parties will terminate upon the expiration or termination of this Agreement.

12.12.      Amendments.

(a)      Terms of Service: Spellbook may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Spellbook written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Renewal Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Spellbook AI Platform following the effective date of an amendment will confirm Customer’s consent to it. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.

(b)     Privacy Policy: Spellbook may revise its privacy policy at any time by posting a new version of either at its website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.12.