MODAL TERMS OF SERVICE
Last updated February 28th, 2023.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE
OFFERED BY MODAL LABS, INC. (“MODAL”). BY MUTUALLY
EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS
(EACH, A “SERVICE ORDER”) OR BY
ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU”
OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER
WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION
OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY
TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN
THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR
ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR
ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE
CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
- SCOPE OF SERVICE AND RESTRICTIONS
- Access and Scope of Service. Subject to Modal’s
receipt of the applicable Fees with respect to the service specified
in the corresponding Service Order (the “Service”),
Modal will use commercially reasonable efforts to make the Service
available to Customer as set forth in this Agreement and the Service
Order. Subject to Customer’s compliance with the terms and
conditions of the Agreement and the Service Order, Customer may
access and use the Service during the period specified in the
Service Order. Any such use of the Service by Customer is solely for
Customer’s internal business. Notwithstanding the foregoing,
Customer may use the Service with respect to third party data, and
such third party data shall be considered Customer Data.
- No-Fee Use. If Customer is accessing or making use
of the Service on a trial or no-fee basis (the “No-Fee Use”) as identified in the corresponding Service Order, or as
presented to Customer in connection with such trial basis or no-fee
use (the “No-Fee Use Limitations”), Customer may
use the Service consistent with the No-Fee Use Limitation provided
such use does not to exceed the Service levels set forth in the
No-Fee Use Limitations. Customer acknowledges and agrees that the
No-Fee Use is provided on an “as-is” basis and the No-Fee Use is
provided without any indemnification, support, warranties or
representation of any kind. Further, No-Fee Use may be subject to
certain additional restrictions, limitations and differing terms all
as specified in the corresponding No-Fee Use Limitations.
- Restrictions. Customer will use the Service only in
accordance with all applicable laws, including, but not limited to,
laws related to data (whether applicable within the United States,
the European Union, or otherwise). Customer agrees not to (and will
not allow any third party to): (i) remove or otherwise alter any
proprietary notices or labels from the Service or any portion
thereof; (ii) reverse engineer, decompile, disassemble, or otherwise
attempt to discover the underlying structure, ideas, or algorithms
of the Service or any software used to provide or make the Service
available; or (iii) rent, resell or otherwise allow any third party
direct access to or use of the Service.
- Ownership. Modal retains all right, title, and
interest in and to the Service, and any software, products, works or
other intellectual property created, used, provided or made
available by Modal under or in connection with the Service. Customer
may from time to time provide suggestions, comments or other
feedback to Modal with respect to the Service (“Feedback”). Customer hereby grants to Modal a nonexclusive, worldwide,
perpetual, irrevocable, transferable, sublicensable, royalty-free,
fully paid up license to use and exploit anyFeedback for any
purpose. Nothing in this Agreement will impair Modal’s right to
develop, acquire, license, market, promote or distribute products,
software or technologies that perform the same or similar functions
as, or otherwise compete with any products, software or technologies
that Customer may develop, produce, market, or distribute.
- Software. Customer acknowledges and agrees that no
software code with respect to the Service will be provided to
Customer hereunder, and that certain software libraries and tools,
and updates thereto, are necessary to access and use the Service
(the “Modal Tools”). The Modal Tools should be
available at the following URL:
https://github.com/modal-labs/modal-client under applicable open source licensing terms. Customer agrees that
it is responsible for obtaining, installing and maintaining the Modal
Tools, and that Modal makes no representations, warranties or is otherwise
liable or obligated hereunder with respect to such Modal tools.
- Customer Data. Customer is solely responsible for
Customer Data including, but not limited to: (a) compliance with all
applicable laws and regulations; and (b) any claims that Customer
Data infringes, misappropriates, or otherwise violates the rights of
any third party. Customer is responsible for the use of the Service
by any person to whom Customer has given access to the Service, even
if Customer did not authorize such use. Customer agrees and
acknowledges that Customer Data may be irretrievably deleted if
Customer’s account is terminated.
- Use of Customer Data. Customer hereby grants to
Modal a limited license to use Customer Data as necessary to provide
the Service to Customer. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided,
uploaded, or submitted by Customer to the Service in the course of
using the Service. Customer shall retain all right, title and
interest in and to the Customer Data, including all intellectual
property rights therein.
- Aggregated De-Identified Data. Notwithstanding
anything to the contrary, Modal may freely use Aggregated
De-identified Data for Modal’s business purposes (including without
limitation, for purposes of improving, testing, operating, promoting
and marketing Modal’s current and future products and services). “Aggregated De-identified Data” means data collected by Modal in connection with Customer’s use
of the Service, but only in aggregate, de-identified form which is
not linked specifically to Customer or any individual, excluding
Customer Data uploaded or submitted by Customer.
- Personal Data. Customer represents and warrants
that is will not provide access, transfer or otherwise make
available to Modal any personally identifiable information or
personal data subject to applicable law or regulation (“Subject Data”). Customer acknowledges and agrees that Subject Data is not
necessary for Customer to use the Service.
- Service Suspension. Modal may suspend Customer’s
access to or use of the Service as follows: (a) immediately if Modal
reasonably believes Customer’s use of the Service may pose a
security risk to or may adversely impact the Service; (b)
immediately if Modal reasonably believes Customer is or has used the
Service in connection with any of the following: cryptocurrency
mining or related blockchain related activities, denial of service
attacks, peer-to-peer file sharing, or as a general file-hosting or
media-serving platform; (c) immediately if Customer become
insolvent, has ceased to operate in the ordinary course, made an
assignment for the benefit of creditors, or becomes the subject of
any bankruptcy, reorganization, liquidation, dissolution or similar
proceeding; (d) following thirty (30) days written notice if
Customer is in breach of this Agreement or any Service Order (and
has not cured such breach, if curable, within the thirty (30) days
of such notice); or (e) Customer has failed to pay Modal the Fees
with respect to the Service. If any amount owing by Customer is
thirty (30) or more days overdue (or 10 or more days overdue in the
case of invoices to be paid by credit card), Modal may, without
limiting any rights and remedies, accelerate Customer’s unpaid fee
obligations to become immediately due and payable, and suspend the
provision of the Service to Customer until the overdue amounts are
paid in full. Modal will give Customer at least ten (10) days’ prior
notice that its account is overdue before suspending services to
Customer due to overdue amounts.
- Data Transfer
For clarity, Customer understands and agrees that by using the Services,
Customer is explicitly consenting to the processing and transfer of Customer
Data (which may constitute Personal Data) within and to the United States,
Canada, and the European Economic Area.
- FEES AND TAXES
- Fees. Customer shall pay to Modal the fees as set
forth in each applicable Service Order(s) (collectively, the “Fees”)
and will provide accurate and updated billing contact information.
Minimum commitments as set forth in Service Orders are (a) based on
the Service purchased and not actual usage; (b) non-cancelable; and
(c) cannot be decreased during the specified term set forth in such
Service Order. Fees are not refundable.
- Invoicing Terms. Modal will invoice Customer either
monthly or according to the billing frequency stated in the Service Order.
Invoices are due pursuant to the corresponding Service Order. If any
invoiced amount is not received by Modal by the due date, then without
limiting Modal’s rights or remedies: (a) those charges may accrue late
interest at the rate of 1.5% of the outstanding balance per month, or
the maximum rate permitted by law, whichever is lower, and (b) Modal
may condition future renewals and Service Orders on shorter payment terms.
If Modal is required to initiate legal action due to nonpayment of fees,
Customer shall bear all costs resulting from the collection of such fees.
- Taxes. Any and all payments made by Modal in
accordance with this Agreement are exclusive of any taxes that might
be assessed against Customer by any jurisdiction. Customer shall pay
or reimburse Modal for all value-added, sales, use, property and
similar taxes; all customs duties, import fees, stamp duties,
license fees and similar charges; and all other mandatory payments
to government agencies of whatever kind, except taxes imposed on the
net or gross income of Modal. All amounts payable to Modal under
this Agreement shall be without set-off and without deduction of any
taxes, levies, imposts, charges, withholdings and/or duties of any
nature which may be levied or imposed, including without limitation,
value added tax, customs duty and withholding tax.
- TERM AND TERMINATION
- Term. The term of this Agreement shall commence on
the Effective and unless terminated earlier according to this
Section 3, will end on the last day of the term specified in a last
Service Order (the “Term”). Each Service Order will
renew automatically at the end of the applicable term unless either
party provides to the other advance written notice with respect to
non-renewal at least thirty (30) days prior to the end of the then
current term.
- Termination. This Agreement and the Service Orders
hereunder may be terminated: (a) by either party if the other has
materially breached this Agreement, within thirty (30) calendar days
after written notice of such breach to the other party if the breach
is remediable or immediately upon notice if the breach is not
remediable; or (b) by Modal upon written notice to Customer if
Customer (i) has made or attempted to make any assignment for the
benefit of its creditors or any compositions with creditors, (ii)
has any action or proceedings under any bankruptcy or insolvency
laws taken by or against it which have not been dismissed within
sixty (60) days, (iii) has effected a compulsory or voluntary
liquidation or dissolution, or (iv) has undergone the occurrence of
any event analogous to any of the foregoing under the law of any
jurisdiction.
- Effect of Termination. Upon any expiration or
termination of this Agreement, Customer shall (i) immediately cease
use of the Service, and (ii) return all Modal Confidential
Information and other materials and information provided by Modal.
Any termination or expiration shall not relieve Customer of its
obligation to pay all Fees accruing prior to termination. If the
Agreement is terminated due to Section 3.2 (a), Customer shall pay
to Modal all Fees set forth in the corresponding Service Order(s).
- Survival. The following provisions will survive termination
of this Agreement: Sections 1.4 (Ownership), 3.3 (Effect of Termination),
Section 3.4 (Survival), Section 4 (Confidentiality), Section 7 (Limitation
of Liability), Section 8 (Miscellaneous).**
- CONFIDENTIALITY
During the term of this Agreement, either party may provide the other
party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and
identified at the time of disclosure as “Confidential” or bearing a
similar legend, and all other information that the receiving party
reasonably should have known was the Confidential Information of the
disclosing party, shall be considered Confidential Information. This
Agreement is Confidential Information, and all pricing terms are Modal
Confidential Information. The receiving party shall maintain the
confidentiality of the Confidential Information and will not disclose such
information to any third party without the prior written consent of the
disclosing party. The receiving party will only use the Confidential
Information internally for the purposes contemplated hereunder. The
obligations in this Section shall not apply to any information that: (a)
is made generally available to the public without breach of this
Agreement, (b) is developed by the receiving party independently from and
without reference to the Confidential Information, (c) is disclosed to the
receiving party by a third party without restriction, or (d) was in the
receiving party’s lawful possession prior to the disclosure and was not
obtained by the receiving party either directly or indirectly from the
disclosing party. The receiving party may disclose Confidential
Information as required by law or court order; provided that, the
receiving party provides the disclosing with prompt written notice thereof
and uses the receiving party’s best efforts to limit disclosure. At any
time, upon the disclosing party’s written request, the receiving party
shall return to the disclosing party all disclosing party’s Confidential
Information in its possession, including, without limitation, all copies
and extracts thereof.
- INDEMNIFICATION
- Indemnification by Customer. Customer will defend,
indemnify, and hold Modal, its affiliates, suppliers and licensors
harmless and each of their respective officers, directors, employees
and representatives from and against any claims, damages, losses,
liabilities, costs, and expenses (including reasonable attorneys’
fees) arising out of or relating to any third party claim with
respect to: (a) Customer Data; (b) breach of this Agreement or
violation of applicable law by Customer; or (c) alleged infringement
or misappropriation of third-party’s intellectual property rights
resulting from Customer Data.
- Indemnification by Modal. Modal will defend,
indemnify, and hold Customer harmless from and against any third
party claims, damages, losses, liabilities, costs, and expenses
(including reasonable attorneys’ fees) arising from claims by a
thirty party that Customer’s use of the Service directly infringes
or misappropriates a third party’s United States (or Berne
Convention signatory country) intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Modal
shall have no obligation to indemnify or reimburse Customer with
respect to any Infringement Claim to the extent arising from: (a)
the combination of any Customer Data with the Service; (b) the
combination of any products or services, other than those provided
by Modal to Customer under this Agreement, with the Service; or (c)
non-discretionary designs or specifications provided to Modal by
Customer that caused such Infringement Claim. Customer agrees to
reimburse Modal for any and all damages, losses, costs and expenses
incurred as a result of any of the foregoing actions.
- Notice of Claim and Indemnity Procedure. In the
event of a claim for which a party seeks indemnity or reimbursement
under this Section 5 (each an “Indemnified Party”)
and as conditions of the indemnity, the Indemnified Party shall: (a)
notify the indemnifying party in writing as soon as practicable, but
in no event later than thirty (30) days after receipt of such claim,
together with such further information as is necessary for the
indemnifying party to evaluate such claim; and (b) the Indemnified
Party allows the indemnifying party to assume full control of the
defense of the claim, including retaining counsel of its own
choosing. Upon the assumption by the indemnifying party of the
defense of a claim with counsel of its choosing, the indemnifying
party will not be liable for the fees and expenses of additional
counsel retained by any Indemnified Party. The Indemnified Party
shall cooperate with the indemnifying party in the defense of any
such claim. Notwithstanding the foregoing provisions, the
indemnifying party shall have no obligation to indemnify or
reimburse for any losses, damages, costs, disbursements, expenses,
settlement liability of a claim or other sums paid by any
Indemnified Party voluntarily, and without the indemnifying party’s
prior written consent, to settle a claim. Subject to the maximum
liability set forth in Section 7, the provisions of this Section 5
constitute the entire understanding of the parties regarding each
party’s respective liability under this Section 5, including but not
limited to Infringement Claims (including related claims for breach
of warranty) and each party’s sole obligation to indemnify and
reimburse any Indemnified Party.
- WARRANTY
- Warranty. The Service, when used by Customer in accordance
with the provisions of this Agreement and in compliance with the applicable
Documentation, will perform, in all material respects, the functions
described in the Documentation during the Term.
- Exclusive Remedies. Customer shall report to Modal,
pursuant to the notice provision of this Agreement, any breach of the
warranties set forth in this Section 6. In the event of a breach of warranty
by Modal under this Agreement, Customer’s sole and exclusive remedy,
and Modal’s entire liability, shall be prompt correction of any material
non-conformance in order to minimize any material adverse effect on Customer’s
business.
- Disclaimer of Warranty. Modal does not represent or
warrant that the operation of the Service (or any portion thereof)
will be uninterrupted or error free, or that the Service (or any
portion thereof) will operate in combination with other hardware,
software, systems or data not provided by Modal, except as expressly
specified in the applicable Documentation. CUSTOMER ACKNOWLEDGES
THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, MODAL MAKES NO
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH
RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. MODAL IS
FURNISHING THE WARRANTIES SET FORTH IN SECTION 6.1 IN LIEU OF, AND
MODAL HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW,
STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL
WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
- LIMITATIONS OF LIABILITY
IN NO EVENT SHALL MODAL BE LIABLE FOR ANY, LOST PROFITS, BUSINESS
INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS
OF THEORY OF LIABILITY. MODAL’S LIABILITY FOR ALL CLAIMS ARISING UNDER
THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED
THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE
SERVICE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
- MISCELLANEOUS
- Export Control. Customer hereby certifies that
Customer will comply with all current applicable export control
laws. Customer agrees to defend, indemnify and hold Modal harmless
from any liability for Customer’s violation of any applicable export
control laws.
- Compliance with Laws. Customer shall comply with all
applicable laws and regulations in its use of any Service, including
without limitation the unlawful gathering or collecting, or assisting
in the gathering or collecting of information in violation of any privacy
laws or regulations. Customer shall, at its own expense, defend, indemnify
and hold harmless Modal from and against any and all claims, losses,
liabilities, damages, judgments, government or federal sanctions, costs
and expenses (including attorneys’ fees) incurred by Modal arising from
any claim or assertion by any third party of violation of privacy laws
or regulations by Customer or any of its agents, officers, directors
or employees.
- Assignment. Neither party may transfer and assign
its rights and obligations under this Agreement without the prior
written consent of the other party. Notwithstanding the foregoing,
Modal may transfer and assign its rights under this Agreement
without consent from the other party in connection with a change in
control, acquisition or sale of all or substantially all of its
assets.
- Force Majeure. Neither party shall be responsible
for failure or delay in performance by events out of their
reasonable control, including but not limited to, acts of God,
Internet outage, terrorism, war, fires, earthquakes and other
disasters (each a “Force Majeure”). Notwithstanding
the foregoing: (i) Customer shall be liable for payment obligations
for Service rendered; and (ii) if a Force Majeure continues for more
than thirty (30) days, either party may to terminate this agreement
upon written notice to the other party.
- Notice. All notices between the parties shall be in
writing and shall be deemed to have been given if personally
delivered or sent by registered or certified mail (return receipt),
or by recognized courier service.
- No Agency. Both parties agree that no agency,
partnership, joint venture, or employment is created as a result of
this Agreement. Customer does not have any authority of any kind to
bind Modal.
- Governing Law. This Agreement shall be governed
exclusively by, and construed exclusively in accordance with, the
laws of the United States and the State of California, without
regard to its conflict of laws provisions. The federal courts of the
United States in the Northern District of California and the state
courts of the State of California shall have exclusive jurisdiction
to adjudicate any dispute arising out of or relating to this
Agreement. Each party hereby consents to the jurisdiction of such
courts and waives any right it may otherwise have to challenge the
appropriateness of such forums, whether on the basis of the doctrine
of forum non conveniens or otherwise. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply to
this Agreement or any Purchase Order issued under this Agreement.
- Publicity. Customer hereby authorizes Modal to
identify Customer as a Modal Customer, and use Customer’s name, mark
and/or logo on Modal’s website and/or in Modal’s marketing materials
with respect to the same. In addition, Customer agrees to
participate in certain publicity activity, such as a case study,
customer quote, and joint press release all as further described in
the corresponding Service Order.
- Entire Agreement. This Agreement is the complete
and exclusive statement of the mutual understanding of the parties
and supersedes and cancels all previous written and oral agreements,
communications, and other understandings relating to the subject
matter of this Agreement, and all waivers and modifications must be
in a writing signed by both parties, except as otherwise provided
herein. Any term or provision of this Agreement held to be illegal
or unenforceable shall be, to the fullest extent possible,
interpreted so as to be construed as valid, but in any event the
validity or enforceability of the remainder hereof shall not be
affected. In the event of a conflict between this Agreement and the
Service Order document, the terms of this Agreement shall control.