CLAY SCIENCES TERMS OF SERVICE

Last updated July 5, 2019

These terms and conditions, together with all agreements expressly incorporated by reference below (collectively, the “Terms”), are between Clay Sciences, LLC (“Clay Sciences” or “we”) and customers of Clay Sciences’ products and services and users of its websites (each, a “Customer” or “you”). The Terms govern (1) your access to and use of www.claysciences.com or any sub-domains provided by Clay Sciences (the “Site”), (2) Clay Sciences’ proprietary platform for data processing, annotation and machine learning models development, as hosted by Clay Sciences and made available to Customer (the “Platform”); and (3) any other content, functionality and services provided by Clay Sciences or by the Platform provided to Customer under these Terms ((1), (2) and (3) collectively, the “Service”).

Your access to portions of the Service may require you to enter into an order form with Clay Services, the terms of which will form part of these Terms (the “Order Form”).

THESE TERMS REQUIRE THE USE OF BINDING ARBITRATION RATHER THAN JURY TRIALS OR CLASS ACTIONS. THIS IS A LEGAL AGREEMENT. BY CLICKING THE “ACCEPT” OR SIMILAR BUTTON OR TICK BOX,OR BY ACCESSING OR USING ANY PORTION OF THE SERVICE (IN THE CASE OF OUR SITE, WHETHER AS A GUEST OR REGISTERED USER), BY PLACING AN ORDER FOR ANY PORTION OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS, AS WELL AS ANY AND ALL ADDITIONAL TERMS AND POLICIES WE PROVIDE, INCLUDING, WITHOUT LIMITATION, OUR PRIVACY POLICY, ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “ACCEPT” OR SIMILAR BUTTON OR TICK BOX, ACCESS OR USE THE SERVICE, OR PLACE ANY ORDER WITH CLAY SERVICES.

These Terms give you specific legal rights, and you may also have additional legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.

  1. 1. ELIGIBILITY; NO USE BY MINORS.

    1. The Service is intended solely for users who are 18 years of age or older. By accessing or using the Service, you represent and warrant that (i) you are 18 or older and otherwise have capacity to contract and (ii) if you are accessing or using the Service on behalf of an entity, you have the authority to bind that entity to these Terms.
    2. Use of the Service is void where prohibited. The Service is controlled and offered by Clay Sciences from the United States. Clay Sciences makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions are responsible for compliance with local law.

  2. 2. PRIVACY.

    1. We respect your privacy and are committed to protecting it. Our Privacy Policy governs the processing of all personal data collected from you in connection with your use of the Service. Please carefully review our Privacy Policy to learn about how we collect and use your data before accessing or using the Service.

  3. 3. SERVICE.

    1. Access to the Service. Subject to all terms and conditions of these Terms, Clay Sciences will provide Customer with access to the Service. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. Clay Sciences reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in these Terms. Customer agrees to provide Clay Services with accurate and truthful information in connection with a Customer account.
    2. License. Subject to all terms and conditions of these Terms, Clay Sciences grants Customer a nonexclusive, nontransferable right and license to access and use the Service (including the Clay Sciences Materials necessary to use the Service), solely for Customer’s internal business purposes as specified in an Order Form. The Service is made available to Customer solely as hosted by or on behalf of Clay Sciences, and nothing in these Terms shall be construed to grant Customer any right to receive any copy of the Service or any software. Customer’s access and use of the Service shall comply with all other conditions set forth in these Terms, the Documentation and the Order Form. “Clay Sciences Materials” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by Clay Sciences in providing the Service and Results (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for Clay Sciences, including at Customer’s request or as a result of Feedback (as defined below) provided by Customer to Clay Sciences). “Documentation” means user guide, help information and other documentation regarding the Service that is provided by Clay Sciences to Customer in electronic or other form.
    3. Feedback. Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback shall be solely owned by Clay Sciences (including all intellectual property rights therein and thereto) and shall also be Clay Sciences’ confidential information. Customer shall and hereby does make all assignments necessary to achieve such ownership.
    4. Customer Data. Customer shall retain ownership of all information, data and other content provided by Customer in connection with its authorized use of the Service (“Customer Data”), subject to the rights and licenses granted herein. Customer shall provide the Customer Data to Clay Sciences in the format specified in the Order Form. Customer hereby grants Clay Sciences a nonexclusive and royalty-free right and license to access, copy, process and use the Customer Data, solely for the purpose of providing the Service. Customer agrees that (a) the Service depends on the availability of the Customer Data and (b) Clay Sciences will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data. Clay Sciences shall store Customer Data or work products resulting from the Service, delivered to Customer by Clay Sciences, which are based on the Customer Data (“Results”). For the sake of clarity, Results shall expressly exclude all Clay Sciences Materials. Results as long as Customer pays the monthly recurring fees set forth in the Order Form, and for 30 days following the day in which Customer ceases to pay the monthly recurring fees.
    5. Limitations. Clay Sciences will not be liable for any failures in the Service related to, or resulted from (a) Customer Data, or (b) any telecommunications, network or other equipment or service outside of Clay Sciences’ control.
    6. Third Party Services. The Platform may be hosted, partly or as a whole, on other platforms, such as Amazon Web Services, Amazon Mechanical Turk, Google Cloud Compute and Microsoft Azure.
    7. Children under 13. The Service is not intended for children under 13 years of age. We do not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register.

  4. 4. PAYMENTS.

    1. Payment Terms. Customer shall pay a fee for the right to use the Service (“Service Fee”) as set forth in the Order Form. Payments shall be made in US dollars at Clay Sciences’ address (or to an account specified by Clay Sciences), in full without set-off, counterclaim or deduction.
    2. Taxes. 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 Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Clay Sciences’ net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to Clay Sciences.

  5. 5. CONFIDENTIALITY.

    1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential information of Clay Sciences includes non-public information regarding features, functionality and performance of the Service, pricing information, Clay Sciences Materials and the Service, Documentation, Worker Instructions, Clay Sciences Materials, and Aggregate Data (as defined below) (collectively, the “Clay Sciences Properties”). “Worker Instructions” means the worker guide, help information and other documentation regarding the Service that is provided by Clay Sciences to human beings doing work on the Platform regarding the Service. Confidential information of Customer includes non-public Customer Data provided by Customer to Clay Sciences to enable the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.

  6. 6. PROPRIETARY RIGHTS.

    1. Results. Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results, except for Clay Sciences Materials as further describe in Section 6.2.
    2. Clay Sciences Materials. To the extent that Clay Sciences includes any Clay Sciences Materials in the Results, then subject to all terms and conditions of these Terms, Clay Sciences agrees to grant Customer (without right to sublicense) a nonexclusive, nontransferable, royalty-free right and license to use such Clay Sciences Materials as embodied in the applicable Results, solely for Customer’s internal business purposes.
    3. Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Customer Data.
    4. Clay Sciences. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Clay Sciences (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Clay Sciences Properties.
    5. Restrictions. Customer shall not directly or indirectly (a) use any of Clay Sciences’ Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service or Clay Sciences Materials (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Clay Sciences Property in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any Clay Sciences Property, or (e) 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.
    6. General Learning; Aggregate Data. Customer agrees that Clay Sciences is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer). Customer further agrees that (a) Clay Sciences shall have the right to create compilations and analyses of Customer Data and Results (“Aggregate Data”) and to create reports, studies, analyses and other work product from Aggregate Data (“Analyses”) provided that any reports that use Customer data will make no reference to Customer, and that the average reader of the report will not know that such data belongs to or is affiliated with Customer, and (b) Clay Sciences 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 advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Services.
    7. Personally Identifiable Information. Customer acknowledges and agrees that the Customer Data will not contain any personally identifiable information, which can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.

  7. 7. WARRANTIES AND DISCLAIMERS.

    1. Customer Data. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under these Terms. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and Clay Sciences’ access, possession and use as permitted herein. The provision of any Customer Data hereunder complies with Customer’s privacy policies and all applicable laws, rules and regulations.
    2. Linking from the Site or E-mails. Our Digital Services or e-mails may contain links to other third party sites that we do not control or maintain. We are not responsible for the privacy practices of any third party site. If you follow a link from our Digital Services or e-mails to another site or application, that site or application’s privacy policies will govern any information that site or application collects about you. Please note when you leave the Digital Services or an e-mail, and review the privacy statement at your destination before submitting any personal information.
    3. Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, THE SERVICE, CLAY SCIENCES PROPERTIES AND RESULTS ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, CLAY SCIENCES MAKES NO WARRANTY (A) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (B) REGARDING THE SECURITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE, OR (C) ANY ERROS IN THE SERVICE THAT CLAY SCIENCES SHALL USE ITS BEST EFFORTS CORRECT. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

  8. 8. LIMITATION OF LIABILITY.

    1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, 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, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF CLAY SCIENCES) OR PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRECEDING TWELVE (12) MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OR PROPRIETARY RIGHTS.

  9. 9. TERM & TERMINATION.

    1. Term. Subject to earlier termination as provided below, these Terms is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
    2. Termination. This Agreement may be terminated by either party if the other party materially breaches a provision of these Terms, and fails to cure such breach within ten (10) days after receiving written notice of such breach from the non-breaching party.
    3. Effects of Termination. Upon any expiration or termination of these Terms, all 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) and all remedies for breach of these Terms shall survive, and (b) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Warranties and Disclaimers), 8 (Limitation of Liability), 9 (General Provisions) and this Section 9.3, shall survive. Clay Sciences has no obligation to retain any Customer Data or Results after the Term and will destroy all Customer Data and Results in its possession within thirty (30) days after the end of the Term.

  10. 10. COPYRIGHT POLICY AND COMPLAINTS.

    1. Clay Sciences respects the rights of all copyright holders and has adopted and implemented a policy that provides for the removal from its Service of materials that infringe the rights of copyright holders. If you believe that any material on our Service infringes upon any copyright that you own or control, please provide Clay Science’s Copyright Agent the following information:
      • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single site are covered by a single notification, a representative list of such works at that site;
      • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
      • Information reasonably sufficient to permit us to contact the complaining party;
      • A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
      • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
      • Clay Science’s Copyright Agent for notice of claims of copyright infringement on or regarding the Service can be reached as follows:
        Ariel Elbaz
        info@claysciences.com
    2. Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to Clay Science’s Copyright Agent:
      • Your physical or electronic signature;
      • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
      • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
      • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York, New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
      • If a counter-notice is received by Clay Science’s Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Clay Science’s sole discretion.

  11. 11. GENERAL PROVISIONS.

    1. Entire Agreement. This Agreement (including any related Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under these Terms. No waiver, consent or modification of these Terms shall bind either party 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. 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. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
    2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. Any disputed under these Terms shall be submitted to mandatory, binding arbitration before the American Arbitration Association in New York County, New York, pursuant to its rules of procedure. In any action or proceeding to enforce or interpret 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 decision or order obtained.
    3. Remedies. Except as specifically provided otherwise, 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 5 or 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
    4. 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, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
    5. Publicity. Customer agrees to grant Clay Sciences the right to use Customer’s name and logo on Clay Sciences’ website, marketing and sales materials.
    6. Notices. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    7. Assignment. This Agreement 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, each party may assign these Terms to 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). Any assignment in violation of this Section 11.7 shall be deemed null and void ab initio. Clay Sciences may use contractors and other third party service providers in performing the Service. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
    8. 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 ventures or partners for any purpose.