This End User Agreement (“Agreement”) is entered into by Run:ai and the entity or person agreeing to these terms (“Customer”) and describes the terms and conditions pursuant to which Run:ai authorizes Customer to access and use the Run:ai Solution, pursuant to a mutually agreed Order. This Agreement is effective as of the date Customer clicks to accept the Agreement or otherwise agrees to the Agreement by using the Run:ai Solution (“Effective Date”).
If Customer signed an offline agreement for use of the Run:ai Solution, such offline agreement governs Customer’s use of the Run:ai Solution and not this Agreement.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
In addition to capitalized terms defined elsewhere in this Agreement, the following terms therein shall have the meanings set forth below:
2. Use Right and Authorization.
2.1 Subject to this Agreement and during the term set forth in the Order, Run:ai will make the Run:ai Solution available to Customer and will grant Customer with a nonexclusive, nontransferable, limited right to access and use the Run:ai Solution, solely for Customer’s internal business use. The Run:ai Solution is made available to Customer on a subscription model for the term specified in the applicable Order. Access and use are authorized under this Agreement for the number of cluster(s), CPUs, GPUs, and other limits set forth in the Order.
2.2 Run:ai will provide Customer with access to and use of the Run:ai Solution in accordance with the Order, including, one (1) machine-readable copy of the Software and standard documentation for Customer's use. The foregoing may be provided electronically. Customer may not transfer or otherwise provide access or use of the Run:ai Solution to any third party, except that Customer may permit its Authorized Users and third-party contractors to access and use the Run:ai Solution, in a manner consistent with the terms of this Agreement, for the exclusive benefit of Customer, with Customer remaining responsible to Run:ai for the acts and omissions of such Authorized Users and third-party contractors. Customer will not make any Copies of the documentation without Run:ai’s prior written approval.
2.3 This Agreement does not transfer to Customer any title nor proprietary or intellectual property rights to the Run:ai Solution or any part thereof, enhancements thereto, or any copyrights, patents, trademarks, or other intellectual property rights embodied or used in connection therewith, except for the limited rights to access and use the Run:ai Solution expressly granted herein. All intellectual property rights, whether registered or unregistered, evidenced by or embodied in and/or attached/ connected/related to the Run:ai Solution, any part thereof, and any improvements thereof, are and shall be owned exclusively by Run:ai and its applicable licensors.
Except as expressly permitted in this Agreement, Customer may not, itself or through any third party: (i) resell, sublicense, or otherwise make available the Run:ai Solution, any part thereof, or any Run:ai services, products or deliverables, to any third party; (ii) disassemble, benchmark, or reverse engineer, or decompile the Run:ai Solution or any Run:ai products or deliverables, in whole or in part (except to the extent such restriction is expressly prohibited by applicable law); (iii) use or copy, or develop any derivative work or any other software program, based upon all or any part of the Run:ai Solution, or any Run:ai products or deliverables, or Run:ai Confidential Information (defined below); (iv) modify, bypass, or interfere with any operational element of the Run:ai Solution; or (v) use the Run:ai Solution for any purpose other than for Customer’s own internal requirements and in accordance with this Agreement and the limits set forth in the Order.
Orders via Reseller. If Customer orders the Run:ai Solution and other Run:ai services from Reseller, then: (a) fees for the Run:ai Solution and the services will be set between Customer and Reseller, and any payments will be made by Customer directly to Reseller under agreement between Customer and Reseller; and (b) the remaining provisions in this Section 4 (Fees) will not apply to the ordered Run:ai Solution and services.
In consideration of the rights and authorization set forth in this Agreement, Customer agrees to pay Run:ai the Fees specified in the Order. The Fees are due and payable within 30 days from the invoice date, unless otherwise is set forth in the Order. The fees set forth in the Order do not include taxes, duties or governmental assessments of any kind, 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 resulting from this Agreement. If a jurisdiction in which Customer conducts business requires Customer to deduct or withhold separate taxes from any amount due to Run:ai, Customer must notify Run:ai in writing. Run:ai will then increase the gross amount of the Run:ai invoices so that, after Customer’s deduction or withholding for taxes, the net amount paid to Run:ai will not be less than the amount Run:ai would have received without the required deduction or withholding. Customer shall transfer all withheld taxes to the appropriate governmental authority and provide Run:ai with documentary evidence thereof. Customer shall not be required to pay or reimburse Run:ai for taxes based upon the net worth, capital, net income, or franchise of Run:ai. Unless otherwise provided in this Agreement or required by law, fees for Run:ai Solution and other Run:ai services are nonrefundable.
5. Maintenance & Support; Professional Services,
5.1 Run:ai will provide maintenance and support in accordance with the Order and Run:ai then-current maintenance and support program, at www.run.ai/support. If Customer has not ordered maintenance and support coverage and wishes to reinstate such coverage, Customer will pay Run:ai (or the applicable reseller) in full for the lapsed time in accordance with the terms of this Agreement and the then current fees. Any such order shall be subject to acceptance by Run:ai. Notwithstanding anything to the contrary in this Agreement, Run:ai do not provide maintenance and support services for products and services provided by Run:ai free of charge.
5.2 If ordered by Customer, Run:ai will provide installation, onboarding, training, and other professional services, pursuant to an agreed Statement of Wok (SOW) and an applicable Order. Fees for such services will be set forth in the Order or in the applicable SOW, and are in addition to the fees for the Run:ai Solution. In the event Run:ai provides services, Customer receives a nonexclusive and non-transferable right to use the deliverables delivered to Customer as a result of the services only in connection with and to the extent of Customer’s right to use the Run:ai Solution, and except for such right to use, Run:ai retains all right, title and interest in the deliverables and results of the services, including all intellectual property rights therein.
6. Warranty and Limitation of Liability.
6.1 Run:ai warrants that (i) the Run:ai Solution will perform in substantial accordance with its standard documentation; (ii) it will perform its obligations under this Agreement with the degree of skill and care reasonably expected from a competent provider of similar services; and (iii) it will perform its obligations under this Agreement and operate its business in compliance with applicable laws. For any breach of such warranty, Customer’s exclusive remedies and Ran:ai’s exclusive obligations are: correction and restoration of access to and use the Run:ai Solution within a reasonable time, at no additional charge, to the extent reasonably necessary to meet the warranty; and if Run:ai is unable to fulfil its obligations on a commercially reasonable basis through correction of the Run:ai Solution, Customer will recover the pro-rata portion of the fees paid in advance for use of the relevant parts of the Run:ai Solution, that were not provided because of the breach of warranty. The warranty set forth herein is made to and for the benefit of Customer only. The warranty will apply only if the Run:ai Solution has been properly installed and used in accordance with the instructions for use, and no alteration, modification or addition has been made to the Run:ai Solution other than by Run:ai. Except as set forth above, Run:ai makes no warranties, whether express, implied, or statutory, regarding or relating to the Run:ai Solution or any other materials or services furnished or provided under this Agreement. Run:ai specifically disclaims all implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
6.2 IN NO EVENT WILL RUN:AI BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COST OF COVER OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE RUN:AI SOLUTION, OR ANY MATERIALS OR SERVICES PROVIDED HEREUNDER, EVEN IF RUN:AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RUN:AI'S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE RUN:AI SOLUTION, OR ANY MATERIALS OR SERVICES PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED THE FEES ACTUALLY RECEIVED BY RUN:AI UNDER THE ASSOCIATED ORDER DURING THE 12 (TWELVE) MONTHS PRECEDING TO THE EVENT GIVING RISE TO SUCH LIABILITY, EXCEPT FOR RUN:AI’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO SERVICES OR SOFTWARE PROVIDED FREE OF CHARGE, WHICH WILL BE LIMITED TO US$1,000. THESE LIMITATIONS WILL APPLY EVEN IF A LIMITED OR EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS HAVE BEEN TAKEN INTO ACCOUNT IN ENTERING INTO THIS AGREEMENT AND REGARDING THE INSURANCE COVERAGES OF EACH PARTY AND ARE INTENDED TO APPLY TO THE EXTENT PERMITTED BY LAW.
Information disclosed by a party (Disclosing Party) to the other party (Receiving Party), which Disclosing Party designates as being confidential, or which the nature of the information or circumstances of disclosure makes reasonably clear should be treated as confidential, will be considered and referred to herein as Confidential Information, including but not limited to the Software and any other computer programs, trade secrets, methods, techniques, processes and know-how, in whatever form made available hereunder, third party information with respect to which Disclosing Party has confidentiality obligations, information of a party’s affiliate(s) which meets the definition contained herein, information relating to the above learned by Receiving Party through the inspection of materials or information disclosed by Disclosing Party, notes, analyses, compilations, studies, summaries, containing or based, in whole or in part, on any information included in the foregoing. Receiving Party agrees to accept and use the Confidential Information solely for the purpose of exercising it rights and performing its obligations under this Agreement (“Purpose”). Receiving Party will not disclose, publish, disseminate, or otherwise provide access to Confidential Information to any third party other than to its affiliates, employee and consultants with a need to know directly related to the Purpose, who are bound by confidentiality obligations at least as restrictive as the terms herein. Any disclosure or use of Disclosing Party’s Confidential Information by such affiliates, employee or consultants that is inconsistent with the terms contained herein shall be the responsibility of the Receiving Party. In performing its duties and obligations hereunder, Receiving Party agrees to use at least the same degree of care and precautions as it does with respect to its own confidential information of like importance but, in any event, to take at least reasonable care and precautions. This Section does not impose obligations with respect to information that (i) is in the public domain at the time of its receipt or subsequently comes into the public domain through no breach of this Agreement; (ii) was already lawfully known to Receiving Party prior to disclosure by Disclosing Party and was without restrictions; (iii) is independently developed by Receiving Party or its employees without use of Confidential Information and any other breach of this Agreement; or (iv) is disclosed pursuant to a judicial or other lawful government order, but only to the extent of such order, with all non-essential information redacted or withheld from disclosure, and only after reasonable prior notice to Disclosing Party (to the extent lawfully permitted) who can attempt lawful process to preclude such disclosure. All Confidential Information and any derivatives thereof, are and shall remain the exclusive property of Disclosing Party. Except for the limited right to use for the Purpose contained herein, neither the execution of this Agreement nor the delivery of any information hereunder shall be construed as granting, either expressly or by implication, estoppel or otherwise, any right or license in the Confidential Information. The obligations relating to the use and protection of Confidential Information shall survive termination or expiration of this Agreement. Receiving Party acknowledges that unauthorized disclosure or use of Confidential Information may cause irreparable harm and significant injury to Disclosing Party that may be difficult to ascertain. Accordingly, Receiving Party agrees that Disclosing Party, without prejudice to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate injunctive relief to enforce the rights and obligations contained in this Agreement without the necessity of proving actual damages, posting bond, or making any undertaking in connection therewith.
Promptly after the date of termination or discontinuance of this Agreement for any reason whatsoever, each party will return or permanently destroy the Confidential Information of the other party, including, without limitation, the Software and documentation. At Disclosing Party’s request, the Receiving Party will certify in writing that it has satisfied its obligations under this section.
8. Term and Termination.
8.1 This Agreement will take effect on the Effective Date and will remain in force for the term set forth in the Order, unless earlier terminated in accordance with this Agreement. Either party may, by written notice, terminate this Agreement if any of the following events ("Termination Events") occur: (i) the other party is in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after the party receives written notice of such breach; or the other party (ii) terminates or suspends its business, (iii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iv) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes. If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination.
8.2 Effects of Termination. If the Agreement terminates, then all Orders also terminate. If the Agreement terminates or expires, then all rights and access to the Run:ai Solution will terminate. If an Order terminates or expires, then after that Order’s termination or expiration effective date, (a) all rights and access to the services under that Order Form will terminate, and (b) Run:ai will send Customer a final invoice (if applicable) for outstanding payment obligations under that Order. Termination or expiration of one Order will not affect other Orders.
9.1 This Agreement (including the Order) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that may be used in connection with Customer’s access to and use of the Run:ai Solution will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the other party to object to such terms, provisions or conditions. This Agreement may not be amended, except by a writing signed by both parties. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. No terms or conditions of any purchase order, acknowledgment or other business form that may be used in connection with Customer’s access to and use of the Run:ai Solution will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Run:ai to object to such terms or conditions. If there is a conflict among the Order and this Agreement, then the terms of this Agreement will prevail, except to the extent set forth otherwise in an Order that the terms of the Order will prevail. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation. Any assignment or transfer made contrary to the foregoing shall be null and void. Run:ai may assign its rights and obligations hereunder to any successor entity, including an entity succeeding to the business of Run:ai by way of merger, or by way of a purchase of all or substantially all of Run:ai’s assets or share capital. Subject to the foregoing, this Agreement shall apply to, inure to the benefit of, and be binding upon the Parties hereto and upon their permitted successors and assigns. If any provision of this Agreement is determined by a court to be invalid or unenforceable, that provision will be deemed stricken and the remainder of this Agreement will continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties; the parties will replace the severed provision with the provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable. No exercise or enforcement by either party of any right or remedy under this Agreement, including termination under Section 8, will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce. The Run:ai Solution relies on third party computing infrastructures, including for the hosting of the Service; and interfaces with, uses, and incorporates third party software, and Run:ai provides no warranty and shall have no liability for such infrastructures or software. Third party software supplied by Run:ai in or with the Run:ai Solution shall be subject to the terms and conditions set forth in the agreements contained in or attached to such software, and such terms and conditions will apply in lieu of the terms of this Agreement with respect to such software. The Run:ai Solution may be subject to export laws and regulations. Customer may not export or re-export the Run:ai Solution or any technology received from Run:ai without the necessary and appropriate government licenses. The provisions of Sections 2.3, 4, 6.2, 7, 8, and 9 will survive expiration or termination of this Agreement for any reason. Under the Agreement, notices to Customer must be sent to Customer’s address or email address set forth in the Order and notices to Run:ai must be sent to [email protected] . Notice will be treated as received when the email is sent. Each party is responsible for keeping its address current throughout the term of this Agreement and every Order. Either party may change its address for notice by notice to the other party given in accordance with this Section. This Agreement may be executed in separate counterparts. A signature transmitted by facsimile transmission or electronic image such as a pdf shall be effective.
9.2 This Agreement will be governed by and construed in accordance with the laws of the State of Israel, without regard to principles of conflict of laws and without regard to the United Nations Convention on the International Sale of Goods. The parties agree that the courts located in Tel Aviv, Israel shall have exclusive jurisdiction over any action arising out of or relating to any provisions contained herein, and waive objection to venue in these courts, and any such action shall be brought and prosecuted only in these courts. Notwithstanding the foregoing, either party may seek interim relief, including an interim injunction, in any court of competent jurisdiction.
Last update: February 21, 2024