Enterprise Terms

Last updated: May 30, 2024

These Enterprise Terms (“Terms”), effective as of the effective date of a signed order form (each, an (“Order Form”) or the date on which you otherwise begin using the Services (such date, the “Effective Date”) are between ReflexAI, Inc., a Delaware corporation with offices at 228 Park Avenue South, PMB 35463, New York, NY 10003 (“ReflexAI”) and the customer set forth on the Order Form or the customer that otherwise begins using the Services (“Customer”). In the event of any conflict between these Terms and the terms of any Order Form (if any), the terms of the Order Form shall control to the extent of such conflict. 
  1. Definitions.
    “Affiliates” means (a) an entity of which a party directly or indirectly owns more than fifty percent (50%) of the stock or other equity interest, (b) an entity that owns more than fifty percent (50%) of the stock or other equity interest of a party or (c) an entity which is under common control with a party by having more than fifty percent (50%) of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

    “Customer Data” means all data, information, and other materials submitted by Customer to the Services.

    “Documentation” means any user guide, help information and other documentation and information regarding the Services that is delivered by ReflexAI to Customer in electronic or other form, if any, including any updates provided by ReflexAI from time to time.

    “Services” means the products and services made available by ReflexAI to Customer as may be mutually agreed to by the parties in an Order Form.
  2. ReflexAI Services.
    1. Services. Subject to all terms and conditions of these Terms, ReflexAI will provide the Services described in an applicable Order Form. ReflexAI grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to use and access the Services solely for Customer’s internal business purposes in accordance with the Documentation for the applicable term of the Order Form. The maximum number of uses per simulation is set forth in the Order Form. In no event is ReflexAI required to guarantee the quality of operations in excess of the maximum number of uses set forth in the Order Form. ReflexAI may provide the Services directly, or indirectly using contractors or other third party vendors or service providers. Customer may enter into Order Forms on behalf of its Affiliates, provided that Customer shall remain responsible for all obligations under such Order Forms.
    2. Access and Account Setup. ReflexAI will provide Customer with access privileges that permit Customer to access and manage its account (“Customer Account”) and access, analyze and download Customer Data. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for ReflexAI’s Services without permission. Customer must notify ReflexAI immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account. Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer. 
    3. Support Services. Provided that Customer is in compliance with these Terms, ReflexAI shall use commercially reasonable efforts to provide the Services in accordance with the terms set forth in the Order Form.
    4. Modifications. From time to time, ReflexAI may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to these Terms; provided that ReflexAI shall have no obligation under these Terms or otherwise to provide any such Updates. Customer understands that ReflexAI may make improvements and modifications to the Services at any time in its sole discretion; provided that ReflexAI shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
    5. Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to ReflexAI with respect to the Service (“Feedback”). ReflexAI acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer hereby assigns to ReflexAI all right, title and interest in and to the Feedback. 
    6. Cooperation. Customer acknowledges that the Services may require the reasonable cooperation of Customer personnel, as may be requested by ReflexAI from time to time. Without limiting the foregoing, where agreement, approval, acceptance, consent or similar action by Customer is required by any provision of these Terms, such action shall not be unreasonably delayed or withheld, and Customer acknowledges that any delay or failure on the part of Customer to provide the same will relieve ReflexAI of its obligations under any Order Form for the pendency of such delay or failure.
  3. Proprietary Rights.
    1. Customer Data. Customer hereby grants to ReflexAI a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data for the purpose of providing the Services to Customer. Except for the limited rights and licenses expressly granted to ReflexAI under these Terms, no other license is granted, no other use is permitted and Customer shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data.
    2. Aggregate Data. Customer agrees that ReflexAI is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder (“General Knowledge”), including that it could have acquired performing the same or similar services for another customer. Customer further agrees that ReflexAI shall have a perpetual, worldwide, non-exclusive, irrevocable right and license to use, store, copy, create derivatives, archive Customer Data (a) to create anonymized compilations and analyses of Customer Data that is combined with data from numerous other customers (“Aggregate Data”), (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”) and (c) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Services using anonymous Customer Data. ReflexAI shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to product improvement and marketing to other customers of the Services; provided, however, that ReflexAI shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Customer Data.
    3. Limited License. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and ReflexAI (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services, including all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by ReflexAI in providing the Services, and all ReflexAI trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Customer Data, which shall be deemed to be the Confidential Information (defined below) of Customer.
    4. Restrictions. Except as expressly permitted in these Terms, Customer shall not directly or indirectly (a) use any of ReflexAI’s Confidential Information to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to these Terms (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts.
  4. Confidentiality.
    1. Confidentiality Obligations. From time to time during the Initial Term or any Renewal Term, either party may disclose (“Disclosing Party”) or make available to the other party (“Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with these Terms (together, “Confidential Information”). Confidential Information of each party includes, without limitation, business plans, customer relationships, acquisition plans, systems architecture, information systems, computer programs and codes, processes, methods, operational procedures, finances, budgets, policies and procedures, product plans, projections, analyses, plans or results, the existence of any business dealings or agreements between Customer and ReflexAI, and any other information which is normally and reasonably considered confidential. Each party agrees that during the Initial Term and/or any Renewal Term and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of these Terms; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return or destroy all copies of any Confidential Information to the Disclosing Party. 
    2. Confidentiality Exclusions. For purposes hereof, Confidential Information will not include any information that: (a) was previously known without restriction by the Receiving Party; (b) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (c) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (d) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
    3. Required Disclosures. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose (to the extent legally permissible) and (b) cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order. 
  5. Payments.
    1. Fees. Customer agrees to pay ReflexAI all fees and expenses in the amounts and at the times specified in the applicable Order Form (the “Fees”). For clarity, if Customer orders Services from a reseller, the Fees shall be set forth in the agreement between Customer and such reseller. All other rights and obligations of the parties regarding any Services ordered from any reseller are as set forth in these Terms. In the event of a conflict between these Terms and the terms of the agreement between Customer and a reseller, these Terms shall control to the extent of such conflict.
    2. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services under these Terms and all Order Forms, excluding Taxes based solely on ReflexAI’s net income. If ReflexAI is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ReflexAI with a valid tax exemption certificate authorized by the appropriate taxing authority. 
    3. Payment Terms. Unless specified otherwise or subject to a good faith dispute, and except as may be otherwise set forth in an Order Form, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after Customer’s receipt of invoice in US dollars at ReflexAI’s address or to an account specified by ReflexAI. 
    4. Expenses. Where indicated on an applicable Order Form, Customer agrees to pay all of ReflexAI’s out of pocket costs and expenses incurred by ReflexAI in the performance of its obligations under these Terms including, without limitation, amounts incurred for air fare, travel, automobile rental, accommodations and an employee per diem. 
  6. Warranties and Disclaimers.
    1. General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into these Terms, to perform its obligations and to grant the rights hereunder; (c) these Terms are legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of these Terms does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
    2. Customer. Customer represents and warrants to ReflexAI that Customer owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms.
    3. ReflexAI. ReflexAI represents and warrants that it will perform the Services in compliance with all applicable laws, rules and regulations.
    4. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. REFLEXAI DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. 
  7. Indemnification.
    1. ReflexAI.
      1. Indemnity. Except as provided below, ReflexAI agrees to (i) defend Customer against any claim by a third party that the Services infringe a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If the Services become or, in ReflexAI’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, ReflexAI may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to ReflexAI, then it may (3) terminate these Terms upon written notice to Customer and refund to Customer any Fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof. The foregoing states the entire liability of ReflexAI, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
      2. Exclusions.  ReflexAI shall have no liability or obligation hereunder with respect to any claim based upon (i) any use of the Services not strictly in accordance with these Terms or in an application or environment for which it was not designed or contemplated, (ii) any Customer Data, (iii) modifications, alterations, combinations or enhancements not created by or for ReflexAI, (iv) any portion of the Services that implements Customer’s requirements, (v) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Customer or any of its Affiliates has an interest.
    2. Customer. Customer agrees to defend ReflexAI against any claim by a third party that is related to (a) ReflexAI’s authorized use of any Customer Data, (b) Customer’s breach of any representation, warranty, covenant or other agreement made herein or (c) claims excluded under Section 7.1(b), and to indemnify ReflexAI for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims. 
    3. Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
  8. Limitation of Liability.
    EXCEPT FOR ANY BREACH OF SECTION 4 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 OR REFLEXAI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL REFLEXAI BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PREVIOUS 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
  9. Term and Termination.
    1. Term. These Terms shall commence on the Effective Date and shall continue for the initial term specified in the Order Form (the “Initial Term”). Unless earlier terminated as provided herein, the Initial Term shall automatically renew for successive terms of one (1) year each (each, a “Renewal Term”), unless Customer notifies ReflexAI of its intent not to renew these Terms at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term.
    2. Termination. These Terms may be earlier terminated by either party (a) if the other party materially breaches a provision of these Terms and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Termination of these Terms shall terminate all outstanding Order Forms.
    3. Effects of Termination. Upon any expiration or termination of any Order Form or these Terms, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) Customer shall cease using the Services (if Customer continues to use the Services, then ReflexAI reserves the right to continue to charge Customer); (c) upon Customer’s request, ReflexAI shall return all Customer Data in a format mutually agreed by the parties to the extent it is technically feasible for ReflexAI to do so (provided that ReflexAI may retain any Aggregate Data in its possession or control); and (d) the provisions of Sections 2.6 (Feedback), 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6.4 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.
  10. General Provisions.
    1. Entire Agreement. The Terms (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of these Terms (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under these Terms. These Terms supersede any vendor forms, order forms, invoices, policies, or other terms and conditions provided by Customer. These Terms may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. No change, consent or waiver under these Terms will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are in English only, which language shall be controlling in all respects. 
    2. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. Unless waived by ReflexAI in its sole discretion, exclusive jurisdiction and venue for actions related to these Terms will be the state or federal courts located in New York County, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
    3. Remedies. Except as specifically provided otherwise herein, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
    4. Notices. All notices under these Terms will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed or the following business day, if transmitted by email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
    5. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.
    6. Publicity. Customer hereby grants ReflexAI a limited, non-transferable (except to the extent these Terms are transferred by ReflexAI in accordance with Section 10.7), non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing ReflexAI’s services and to provide high-level explanations regarding Customer’s use of the Services to support Customer’s training and quality assurance, both on ReflexAI’s public-facing website and in marketing and promotional materials.  ReflexAI hereby grants Customer a limited, non-transferable (except to the extent these Terms are transferred by Customer in accordance with Section 10.7), non-exclusive license to include ReflexAI’s name and standard logo in connection with Customer’s use of the Services on Customer’s public-facing website and in marketing and promotional materials. In the event that either party would like to use the other party’s name and standard logo outside of the limited licenses granted in this Section 10.6 (including case studies or detailed descriptions of use of the Services), such party shall be required to give its consent prior to such use.
    7. Assignment. These Terms and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, ReflexAI may assign these Terms to (a) an Affiliate or (b) any successor to all or substantially all of its business that concerns these Terms (whether by sale of assets or equity, merger, consolidation or otherwise). These Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
    8. Third Party Beneficiaries. These Terms are entered into solely between, and may be enforced only by, Customer and ReflexAI. These Terms will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.
    9. Independent Contractors. The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.