Terms & Conditions

PLEASE READ THESE TERMS OF USE (THESE “TERMS”) FULLY AND CAREFULLY BEFORE USING THE SERVICES AND SOFTWARE (AS DEFINED BELOW) OFFERED BY KERU AI INC. (D/B/A KEPLER) (“KEPLER”). THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR USE BY YOU AND YOUR EMPLOYER (COLLECTIVELY, “COMPANY”) OF THE SERVICES AND SOFTWARE. BY USING THE SERVICES OR SOFTWARE IN ANY MANNER, COMPANY AGREES THAT IT HAS READ AND AGREED TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS HEREIN. PLEASE NOTE THAT COMPANY’S USE OF AND ACCESS TO THE SERVICES AND SOFTWARE ARE EXPRESSLY CONDITIONED UPON ASSENT TO ALL OF THESE TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, OR IF YOU ARE NOT AUTHORIZED TO AGREE TO ALL OF THE FOLLOWING ON BEHALF OF COMPANY, YOU MAY NOT USE OR ACCESS THE SERVICES OR SOFTWARE IN ANY MANNER.

Services

Subject to Company’s full compliance with these Terms, Kepler grants Company a nonexclusive, non-sublicensable, nontransferable, limited license to access and use the Kepler products or services specified during the registration process (“Registration,” and such products and services, the “Services”), only for Company’s internal use in accordance with documentation provided to Company by Kepler (if any). Kepler will provide to Company, or otherwise allow Company to create, the necessary passwords to allow Company to access the Services.

Restrictions

Company shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Company as set forth in these Terms; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software; or (vi) permit any third party to do any of the foregoing. Company will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Kepler of any unauthorized use that comes to Company’s attention and provide all reasonable cooperation to prevent and terminate such use.

Service Updates

From time to time, Kepler may, in its sole discretion, provide or make available to Company upgrades, patches, enhancements, improvements or fixes for the Services (“Updates”), and such Updates will become part of the Services and subject to these Terms. Kepler shall have no obligation under these Terms or otherwise to provide any such Updates.

Ownership

As between the parties, Kepler will and does own all intellectual property and other proprietary rights in the Services, Software, and Updates (including any and all improvements to, and modifications and derivative works of, any of the foregoing and all related documentation and materials). Except as unambiguously set forth in these Terms, no rights or licenses are granted to Company hereunder.

Feedback

Any technical, financial or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary at the time of disclosure or of such a nature that a reasonable person would understand such information to be confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed or, except as expressly provided herein, used by the Receiving Party; this obligation will not apply to information that is generally and freely publicly available through no fault of the Receiving Party, or that the Receiving Party otherwise rightfully obtains from third parties without restriction. Company may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services or Software (“Feedback”). Kepler shall exclusively own all rights, title, and interests (including any intellectual property rights) in and to Feedback. Company shall and hereby does make all assignments necessary to achieve such ownership. Notwithstanding anything to the contrary in these Terms, the Services, Software, and Feedback are Kepler Confidential Information.

Company Data

As between the parties, except as expressly set forth herein, Company exclusively owns and shall retain all rights, title, and interests in and to all information, data, and other content that Company provides Kepler with access to hereunder and that is actually accessed or otherwise processed by Kepler hereunder (collectively, “Company Data”). Company hereby represents and warrants that it has all rights, authorizations, permissions, and consents necessary to provide or make accessible the Company Data to Kepler (and for Kepler to use and process such Company Data) as contemplated hereunder, in each case without any infringement, violation, or misappropriation of any third-party rights (including, without limitation, intellectual property rights and rights of privacy). Company acknowledges and agrees that Company Data may be irretrievably deleted following any termination or expiration of this Agreement. Notwithstanding anything to the contrary, Company acknowledges and agrees that Kepler may (and Company hereby grants Kepler the right and license to) (i) internally use and modify (but not disclose) Company Data for the purposes of (a) providing the Services to Company and training artificial intelligence, machine learning, and large language models (collectively, “AI Models”) and (b) generating Aggregated De-Identified Data (as defined below); and (ii) freely use, retain and make available Aggregated De-Identified Data for Kepler’s business purposes (including without limitation, for purposes of creating Updates, training AI Models, and improving, testing, operating, promoting and marketing Kepler’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Kepler in connection with Company’s use of the Services, but only in aggregate, de-identified form which can in no way be linked specifically to Company.

Support Services

The parties may mutually agree upon support to be provided by Kepler, but in the absence of such written agreement, no support services are provided under these Terms.

Third-Party Integrations

Company acknowledges and agrees that (i) the Services and Software may operate on, with or using application programming interfaces (“APIs”) or other services operated or provided by third parties (e.g., other vendors of Company), which could include without limitation, Company’s Databricks instance(s) (collectively, “Third Party Integrations”), (ii) the availability and operation of the Service or certain portions thereof may be dependent on Kepler’s ability to access such Third-Party Integrations, and (iii) Company’s failure to provide adequate access, which may require providing Kepler with the applicable API token, or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Services or Software. Company hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third-Party Integrations that it integrates with the Service or Software (and to allow and enable Kepler to do so), and Company shall indemnify, defend, and hold harmless Kepler for all claims, damages and liabilities arising out of Company’s or Kepler’s use of any Third Party Integrations in connection with or through the Services or Software. Kepler cannot and does not guarantee that the Services or Software shall incorporate (or continue to incorporate) any particular Third-Party Integrations and does not make any representations or warranties with respect to Third-Party Integrations. Company is solely responsible for procuring any and all rights necessary for it to access Third-Party Integrations (including any Company Data or other information relating thereto), for determining how much data, content and other information Kepler is provided or given access to, and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Company and a third party provider is solely between Company and such third party provider and is governed by such third party’s terms and conditions.

Payments

Free Version

If Company is using a free version of the Services, all usage of the Services will be subject to all applicable terms and limitations communicated to Company by Kepler including during Registration. Upon expiration of the trial, Company must pay all applicable fees for continued use of the Services.

Paid Version

Company agrees to pay Kepler all fees in the amounts and at the times specified during Registration, and as otherwise provided in these Terms. If Company exceeds any usage limitations specified during Registration, then Kepler shall invoice Company, and Company shall pay, for such additional usage at the overage rates set forth on the Registration (or if no overage rates are set forth during Registration, at Kepler’s then current standard overage rates for such usage). Unless specified otherwise, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice date, in US dollars, at Kepler’s address or to an account specified by Kepler. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. All payments required by these Terms are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Company agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Kepler’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

Termination

These Terms shall commence upon Company’s acceptance hereof during Registration (such date, the “Effective Date”) and, unless terminated earlier in accordance herewith, remain in effect until the last date of the period specified during Registration. If no such period is specified during Registration and Company is using a free version of the Services, then the term is three (3) months following the Effective Date. If no such period is specified during Registration and Company is using a paid version of the Services, then the term is one (1) year following the Effective Date. In the event of a breach of these Terms by either party, the non-breaching party may terminate these Terms by providing written notice to the breaching party; provided, the breaching party does not materially cure such breach within thirty (30) days after the date of such notice (ten (10) days in the case of a breach of payment obligations). Without limiting the foregoing, Kepler may suspend or limit Company’s access to or use of the Services if (i) Company’s account is more than thirty (30) days past due, or (ii) Company’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Kepler’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Kepler shall use reasonable good faith efforts to work with Company to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Kepler shall use commercially reasonable efforts to provide notice to Company describing the nature of the damage or degradation; and (c) Kepler shall reinstate Company’s use of or access to the Services, as applicable, if Company remediates the issue within thirty (30) days of receipt of such notice. Upon any expiration or termination, Company shall immediately cease all use of the Services and return all Confidential Information of Kepler related thereto (including all copies and extracts thereof). The following provisions will survive termination: Sections 2, 4, 5, 8 9 (for amounts incurred prior to the effective date of termination or expiration), 11, 12, 13, 14, and this Section 10, Kepler’s rights related to generating, using, retaining and making available Aggregated De-Identified Data as described in more detail in Section 6, as well as any and all remedies for any breach of these Terms. Termination is not an exclusive remedy, and all other remedies will remain available.

Warranty Disclaimer

THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND KEPLER AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, RELATING TO THE SERVICES, SOFTWARE AND ANY OTHER SUBJECT MATTER OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Liability

NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR OTHERWISE, AND EXCEPT FOR BODILY INJURY OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, NEITHER KEPLER NOR ITS SUPPLIERS SHALL BE LIABLE WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) AMOUNTS, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) $500 OR (B) THE AMOUNTS PAID TO KEPLER BY COMPANY HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE DAMAGES, EVEN IF FORESEEABLE.

Dispute Resolution

These Terms are governed by and shall be construed under the Federal Arbitration Act, applicable federal law and the laws of the State of New York, without regard to the conflicts of law provisions thereof. Any dispute, claim or controversy arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation or validity thereof (including the determination of the scope or applicability of this agreement to arbitrate), shall be determined by arbitration in New York, NY. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, and in accordance with the Expedited Procedures in the Rules (collectively, the “Rules”), by one commercial arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the Rules. All decisions of the arbitrator shall be in accordance with these Terms. Judgment upon the award so rendered may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. The party prevailing in the arbitration proceedings conducted pursuant to this Section 13 shall be promptly reimbursed by the other party for all reasonable costs, including reasonable attorneys’ fees, incurred relating to such arbitration proceeding. Notwithstanding the foregoing, neither party shall be prohibited from seeking injunctive or other equitable relief in any court of competent jurisdiction.

Miscellaneous

Neither these Terms nor the licenses granted hereunder are assignable or transferable by Company; any attempt to do so shall be void. Kepler may assign these Terms in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. Any waivers or amendments shall be effective only if made in writing and executed by both parties. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms. The prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action.

Contact

Questions about these Terms can be directed to legal@kepler.ai.