Terms and Conditions
Terms & Conditions
Last Updated: October 8, 2024
The following Terms of Service (“Terms” or “Agreement”) constitute a legal agreement between you and the entity or company that you represent (“Customer” or “You”) and Limbik Inc. (“Limbik” or “our”), which governs Customer’s use of the Services (defined below). The Services can be accessed as (a) a free-to-the-user service having the specifications outlined in the respective Plan (the “Free Version”) and (b) a paid service having the specifications outlined in the respective Plan, for which Customer pays a usage or monthly or yearly subscription fee (the “Paid Version”). Customer’s use of the Services is subject to (i) the terms and conditions set forth below and (ii) Limbik’s privacy policy, found at https://www.limbik.com/privacy-policy and incorporated herein by reference (the “Privacy Policy”), so please take the time to fully understand how these Terms and the Privacy Policy govern Customer’s relationship with Limbik and Customer’s use of the Services. The Services are available only to individuals who are at least 18 years old. If Customer is an individual, Customer represents and warrants that Customer is at least 18 years old.
Customer acknowledges that the Free Version is provided at no charge, and therefore, the terms that govern use of the Free Version are different, in part, from the terms that govern use of the Paid Version. The specific provisions that relate only to the Paid Version are set forth in Sections 6 (Paid Version Payments), 7.1 (Paid Version Limited Warranty), 8.1 (Paid Version Limitation of Liability), and 9.2 (Termination of the Paid Version), and the specific provision that relates only to the Free Version is set forth in Section 8.2 (Free Version Limitation of Liability). All other non-specified terms shall apply to both the Paid Version and Free Version. If Customer upgrades from the Free Version to a Paid Version, Customer acknowledges and agrees that the terms that govern the use of the Paid Version shall automatically apply to Customer upon such upgrade.
CUSTOMER’S RIGHT TO USE THE SERVICE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY SIGNING INTO AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1. Definitions
1.1 “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, as well as any and all information disclosed that the other party should reasonably have known to be confidential, but not including any information the receiving party can demonstrate (a) was already rightfully known by it without restriction, (b) is rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) is or becomes generally available to the public without breach of this Agreement or (d) is independently developed by it without use of, reference to or any other reliance on the Confidential Information of the disclosing party. All pricing information is Limbik’s Confidential Information.
1.2 “Content” means Input, Output and all other text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and materials that may be viewed on, accessed through, or contributed to the Services.
1.3 “Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Limbik in connection with providing the Services, including without limitation Inputs and Outputs.
1.4 “Customer Systems” means Customer’s information technology infrastructure, including computers, modems, servers, software, hardware, databases, electronic systems, networks, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
1.5 “Input” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and materials that You contribute to the Services.
1.6 “Limbik Systems” means Limbik’s information technology infrastructure, including computers, modems, servers, software, hardware, databases, electronic systems, networks, network and communications equipment and ancillary services that are owned, controlled or procured by Limbik.
1.7 “Output” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, forecasts, simulations, interactive features and materials generated by and accessed through the Services.
1.8 “Plan” means Limbik’s Free Version or Paid Version plans, as applicable, and as further described on Limbik’s website available at https://limbik.com or, if applicable, in an invoice delivered by Limbik to Customer (each, an “Invoice”).
1.9 “Services” means the services hosted by Limbik and provided to Customer under this Agreement.
1.10 “Updates” means any patch, revision or update to the Services delivered by Limbik.
2. Services
2.1 Services
Subject to all terms and conditions of this Agreement, Limbik will use commercially reasonable efforts to provide the Services. Limbik may provide the Services to Customer directly, or indirectly using contractors or other third party vendors or service providers. Use of the Services by Customer shall not unreasonably interfere with the use of the Services by other Limbik customers.
(a) Users
Customer’s use of the Services is limited to the levels of usage specified in the Customer’s Plan (the “Service Allocation”). Customer’s use of the Services may not exceed the Service Allocation. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Limbik the applicable excess usage fees set forth in the Customer’s Plan. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and agrees that Limbik has no obligation to permit Customer to exceed its then-current Service Allocation. Customer shall be responsible for any breaches of this Agreement by its end users.
(b) Security Measures
Customer, Customer Managers and Customer-appointed Contacts may access the Services as Limbik instructs through a combination of one or more user names and passwords.
(c) Passwords
Customer shall take full responsibility and liability for the security of each of its user names and passwords (including, without limitation, those assigned to its end users), and shall be solely responsible for all use of the Services through such user names or passwords. Customer agrees to immediately notify Limbik of any unauthorized use of the Services or any other breach of security known to Customer.
(d) Prohibited Uses
As a condition of use of the Services, You promise not to use the Services for any purpose that is prohibited by these Terms.
By way of example, and not as a limitation, You shall not (and shall not permit any end users to) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Services, that:
(i) Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity;
(ii) Is unlawful, threatening, abusive, harassing, defamatory libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, vulgar, pornographic, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate, as determined by Limbik in its sole discretion; or
(iii) Contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any Limbik Systems, data, password or other information of Limbik or any third party.
Additionally, You shall not (directly or indirectly) or permit any third party to: (1) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (2) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from Services or reproduce or circumvent the navigational structure or presentation of Services; (3) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas, models or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction; (4) use any of Limbik’s Confidential Information to create any software, documentation or service that is similar to the Services or any documentation provided in connection therewith; (5) modify, translate, or otherwise create derivative works of any part of the Services; or (6) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Limbik. You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or other relevant jurisdiction. Finally, you must be a human. Access to the Services by “bots” or other automated methods is not permitted without Limbik’s prior written consent, which may be withheld, conditioned, or delayed in Limbik’s sole, absolute and unfettered discretion.
(e) Changes
Limbik reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time by giving at least 60 days’ notice to Customer.
(f) Limitations
Limbik will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other service or equipment failures outside of Limbik’s facilities, (c) Customer’s or a third party’s products, services, negligence, acts or omissions, (d) any event or cause beyond Limbik’s reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
(g) Systems
Customer shall obtain and operate all Customer Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Customer Systems are compatible with the Services. Customer shall maintain the integrity and security of the Customer Systems (physical, electronic and otherwise).
(h) Third-Party Services
Customer acknowledges that the Services may integrate with or provide access to third-party software applications and other technologies, including Third Party AI Services (as defined below) (the “Third Party Services”), in which case You may be subject to the terms of service, privacy policies, and/or usage policies of that third party (collectively, the “Third Party Terms”). Limbik does not control, endorse, or assume any responsibility for such Third Party Services and is not responsible for the practices or policies of such third parties. You are solely responsible for reviewing and complying with any applicable Third Party Terms. You are also responsible for responding to any third-party claims regarding your use of the Third Party Services in compliance with the Third Party Terms and applicable laws (including, but not limited to, copyright infringement or other claims relating to Outputs generated through Your use of the Third Party Services). If the provider of a Third Party Service ceases to make it available for use with the Services on terms acceptable to Limbik, Limbik may cease providing such features without entitling Customer to any refund, credit, or other compensation.
2.2 Artificial Intelligence (“AI”) Technologies and the Services
(a) At the core of the Services are Limbik’s proprietary cognitive AI models. “Cognitive AI” refers to Limbik’s Systems that simulate human response by learning, understanding, reasoning, and responding in a similar way that humans do. The Services may also provide users with the ability to leverage components from, or connect to, third-party AI technologies (e.g., OpenAI’s ChatGPT) (the “Third Party AI Services”).
(b) Any text generated by the Third Party AI Services (e.g., through the use of generative AI technologies) is produced by AI and not by certified experts, and the Service instead serves as a mere conduit between the user and the Third Party AI Services that Limbik leverages. Limbik is not responsible for the Output generated by the Third Party AI Services, nor how users choose to use the text generated by the Third Party AI Services, and Limbik expressly disclaims all liability in connection therewith.
(c) While Limbik strives for accuracy and reliability, the Services may have limitations and not fully understand or correctly interpret the Inputs they process. Consequently, errors may occur for numerous reasons, including due to:
(i) Misinterpretation or misunderstanding of the Inputs;
(ii) Skewed results and inaccurate predictions; and
(iii) Inherent biases in the data Limbik uses for training its models.
(d) Similarly, the Third Party AI Services (particularly those that leverage generative AI technologies) may have limitations and not fully understand or correctly interpret the Inputs they process. Consequently, errors may occur for numerous reasons, including due to:
(i) Misinterpretation or misunderstanding of the Inputs;
(ii) Summarizing irrelevant or incorrect parts of a webpage;
(iii) Inability to access or summarize Inputs from paywalled or private websites;
(iv) Encountering obfuscated or manipulated URLs that prevent straight forward access or summarization;
(v) Producing outdated results due to a reliance on outdated training data.
(e) When you use our Services you understand and agree that:
(i) Outputs may not always be accurate. You should not rely on Outputs from our Services as a sole source of truth or factual information, or as a substitute for professional advice.
(ii) You must evaluate Outputs for accuracy and appropriateness for your use case, including using human review as appropriate, before using or sharing Outputs from the Services.
(iii) You are responsible for Inputs, including ensuring that such Inputs do not violate any applicable law, Third Party Terms or these Terms. You represent and warrant that you have all rights, licenses, and permissions needed to provide Inputs to the Services.
(iv) Due to the nature of our Services and artificial intelligence generally, Outputs may not be unique and other users may receive similar Outputs from our Services.
(f) AI and machine learning are rapidly evolving fields of study. Limbik is constantly working to improve the Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of machine learning, use of the Services may, in some situations, result in Outputs that do not accurately reflect real people, places, or facts.
(g) Limbik is committed to protecting Your privacy. Limbik does not source, access, or store any personally identifiable information or personal information in the data it uses for training and improving its AI models. While Limbik does not use your direct Inputs to train and improve its AI models, Limbik may use Your Inputs as a means for generating synthetic training data (i.e., artificially generated training data created using algorithms or simulations rather than real-world sources). If you would like to opt-out of Limbik’s use of Your Inputs in connection with the generation of Limbik’s synthetic training data, You may submit a request to support@limbik.com. Limbik will use commercially reasonable efforts to process your opt-out request within five business days of its receipt of such request.
(h) If You would like to delete Your Inputs and/or Outputs from Limbik’s Systems, You may (i) log in to the Services and manually delete the applicable Inputs and/or Outputs or (ii) submit a request to support@limbik.com. If You request Limbik to delete your Inputs and/or Outputs, Limbik will use commercially reasonable efforts to delete such information in accessible form within five business days after its receipt of such deletion request. Any Inputs or Outputs deleted by You (or by Limbik upon Your request) will be deleted from Limbik’s archival Systems and Limbik’s Systems that are not accessible to users within three months after the date of the deletion (or request for deletion by Limbik in accordance with this Section) is processed. Limbik shall have no liability with respect to the deletion of Inputs or Outputs.
3. Support and Maintenance
3.1 Support
Limbik will use commercially reasonable efforts to provide Customer with support and maintenance service for the Services in accordance with its standard practices (as amended from time to time). Customer agrees that Limbik will have the right to charge in accordance with its then-current policies for any support services resulting from problems, errors or inquiries relating to Customer’s Systems or any other network, equipment, service or software not owned, controlled or procured by Limbik.
3.2 Updates
Limbik shall have no obligation to provide Updates, except that Limbik will provide Customer with any Update that it makes generally available without charge to its similar customers.
4. Proprietary Rights
4.1 Customer Data
As between the parties, Customer owns and shall retain its ownership of all Customer Data. Limbik shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, Limbik may use Customer Data, whether alone or in combination with other Limbik customers’ data, for any lawful business purpose, including to provide, maintain, develop, improve and/or market the Services, comply with applicable law, enforce our terms and policies, and keep our Services safe. Customer hereby grants Limbik a perpetual, royalty-free, fully-paid up, non-exclusive right and license to use the Customer Data solely for the purposes described above. Customer agrees to create archival copies or backup copies of all Customer Data. You may obtain a copy of Your Customer Data by submitting a request to support@limbik.com.
4.2 Services
As between the parties, Limbik owns and shall retain its ownership of all right, title and interest, including all intellectual property rights, in and to the Services and, with respect to the Third Party Services, the applicable third-party providers shall retain their ownership of all right, title and interest, including all intellectual property rights, in and to the Third Party Services.
4.3 Feedback
If Customer or any of its employees or contractors sends or transmits any communications or materials to Limbik by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Limbik shall be free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Limbik on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to, and Limbik is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever (although Limbik is not required to use any Feedback).
4.4 No Implied License
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Limbik (and its licensors) shall retain all right, title and interest in and to the Services (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.
4.5 Trademarks and Legal Notices
Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice references, linked to or otherwise incorporated with the Services.
5. Confidentiality
5.1 Confidentiality
Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access to Confidential Information (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees, contractors and agents. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.
Notwithstanding the foregoing, Limbik may retain and use Customer Data, as combined with other Limbik customers’ data, solely to improve and/or market the Services, even after termination of the provision of Services to You. Each party may disclose only the general nature, but no the specific terms, of this Agreement without the prior consent of the other party; provided, that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
5.2 Compelled Disclosure
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a court or governmental agency of competent jurisdiction 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 allowed) and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order. In the event that a protective order or other limitation on such disclosure is not obtained, the party required to make such disclosure shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to disclose.
6. Paid Version Payments
6.1 Fees
Customer agrees to pay Limbik the fees, in the amounts and at the times specified in the selected Plan.
6.2 Payment Information
In order to set up an account with Limbik, You may be required to provide Limbik or our third-party payment processors with accurate and complete payment information including Your legal name, address, telephone number, and/or a valid credit card. By submitting such credit card and/or other payment information, You authorize Limbik or our third-party payment processors using the credit card and other payment information You provide to process a charge using the credit card and other payment information You provide for purposes of authenticating Your identity, validating Your payment card, obtaining payment authorization and otherwise authorizing the relevant transaction. You consent to our use of any information provided by You, including personally identifiable information, to conduct anti-fraud checks at our sole discretion, and this authorization applies to use by our third-party payment processors. In conducting such checks, we or our third-party payment processors may disclose, and You authorize us and our third-party payment processors to disclose, Your information to credit reference and fraud prevention service providers, who may keep a record of the information disclosed. Limbik reserves the right to terminate this Agreement in accordance with Section 9.2 if Customer does not provide a valid payment information for the payment of fees hereunder.
6.3 Payment Terms
The Services are billed in advance on a monthly or yearly basis, depending upon which payment plan is chosen by Customer. Limbik will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account. For any Services upgrade, Customer’s credit card will automatically be charged the new rate for the next billing cycle (i.e., the next month or year), and for those Customers on the yearly payment plan, the additional fee for the Services upgrade for the remainder of the then-current year will also automatically be charged to the Customer’s credit card.
6.4 Taxes
All payments 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 Limbik’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
7. Limited Warranty and Disclaimers
7.1 Paid Version Limited Warranty
Limbik warrants that it will provide the Paid Version in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Paid Version may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Limbik to repair, maintain or upgrade the Paid Version or for causes beyond Limbik’s reasonable control. Limbik will notify Customer at least 48 hours in advance of any known planned Paid Version-related outages.
7.2 Disclaimers
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LIMBIK DOES NOT WARRANT THAT THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LIMBIK HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION TO THE FOREGOING, LIMBIK MAKES NO WARRANTIES OR GUARANTEES AS TO ITS OFFERING OF ANY THIRD PARTY AI SERVICE OR THE AVAILABILITY THEREOF IN CONNECTION WITH THE SERVICES.
8. Limitation of Liability; Indemnification
8.1 Paid Version Limitation of Liability
EXCEPT FOR AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 2.1(d) (PROHIBITED USES) OR SECTION 6.1 (FEES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES (OR ITS OR THEIR REPRESENTATIVES OR SUPPLIERS) BE LIABLE 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) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, ENHANCED, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO LIMBIK HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.2 Free Version Limitation of Liability
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL LIMBIK OR ITS AFFILIATES (OR ITS OR THEIR REPRESENTATIVES OR SUPPLIERS) BE LIABLE 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) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, ENHANCED, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES IN EXCESS OF $100.00 IN THE AGGREGATE, EVEN IF LIMBIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.3 Indemnification
Customer agrees to indemnify, defend and hold harmless Limbik and its owners, managers, shareholders, members, directors, officers, employees, and agents from and against all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from:
(a) any breach of this Agreement by Customer or any grossly negligent or intentionally wrongful act or omission of Customer or its representatives (including all end users);
(b) any claim that the Customer Data is unlawful or actually does or threatens to infringe or misappropriate any intellectual property rights or other rights of any third party;
(c) Limbik’s use or disclosure of the Customer Data in connection with the provision of Services or to comply with any legal, regulatory or similar requirement or investigation; or
(d) any use of the Services (including the Third Party Services) by Customer or its representatives (including all end users) that is beyond the scope of or otherwise fails to conform to the express requirements or restrictions of this Agreement, the Third Party Terms or any authorization or approval given in writing by Limbik to Customer or such authorized user.
9. Term and Termination
9.1 Term
(a) This Agreement shall commence on the date that this Agreement is accepted.
(b) With respect to a Paid Version user, this Agreement shall continue in effect for, as applicable, (i) the initial term specified in the Plan, (ii) the initial term specified in an Invoice, or (iii) if no initial term is specified as described in (i) and (ii), then for one month (each of (i)-(iii), as applicable, the “Initial Term”), unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such Initial Term, this Agreement will, as applicable, (x) automatically terminate upon the termination date specified in an Invoice or (y) be extended automatically for subsequent one-month terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless terminated earlier as permitted in this Section 9.1 or in Section 9.2. Either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least one month prior to the end of the then-current Term. Customer is solely responsible for properly notifying Limbik of its election not to have this Agreement
automatically renew in accordance with this Agreement or, if applicable, by following the cancellation directions available in Customer’s Limbik account.
(c) With respect to a Free Version user, this Agreement shall continue in effect until either party terminates this Agreement upon at least 5 business days’ written notice to the other party.
9.2 Termination of the Paid Version
With respect to the Paid Version, this Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) 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 60 days, or the other party becomes insolvent, or without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.3 Effects of Termination
Upon any expiration or termination of this Agreement, 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 remedies for breach of this Agreement shall survive, (b) Limbik may, but shall not be obligated to, delete archived Customer Data (provided, Paid Version customers, upon written request received by Limbik within 30 days after the effective date of termination of their accounts, shall be given a copy of their archived Customer Data in the currently existing archived format) and (c) the provisions of Section 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability; Indemnification), 11 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive. For the avoidance of doubt, Limbik is under no obligation to provide a Free Version customer a copy of such customer’s archived Customer Data upon any expiration or termination of this Agreement.
10. Digital Millennium Copyright Act
10.1 General Policy
Limbik has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (https://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Limbik’s policy to (a) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of its affiliates, content providers, or users; and (b) remove and discontinue service to repeat offenders.
10.2 Procedure for Reporting Copyright Infringement
If You believe that Content residing on or accessible through the Limbik web site or Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the Content that is claimed to be infringing including information regarding the location of the Content that the copyright owner seeks to have removed, with sufficient detail so that Limbik is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once Proper Bona Fide Infringement Notification is received by the Designated Agent, it is Limbik’s policy:
(a) To remove or disable access to the infringing Content;
(b) To notify the Content provider or user that it has removed or disabled access to the Content; and
(c) That repeat offenders will have the infringing Content removed from Limbik’s Systems and that Limbik will terminate such content provider’s or user’s access to the Services.
10.3 Procedure to Supply a Counter-Notice to the Designated Agent
If the Content provider or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the Content provider or user must send a counter-notice containing the following information to the Designated Agent listed below:
(a) A physical or electronic signature of the Content provider or user;
(b) 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;
(c) A statement that the Content provider or user has a good faith belief that the Content was removed or disabled as a result of a mistake or a misidentification of the Content; and
(d) Content provider’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the Content provider’s or user’s address is located, or if the Content provider’s or user’s address is located outside the United States, for any judicial district in which Limbik is located, and that such person or entity will accept service of process from the person who provided notification of the
alleged infringement.
If a counter-notice is received by the Designated Agent, Limbik 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 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 Limbik’s discretion.
10.4 Designated Agent to Receive Notification of Claimed Infringement Please contact Limbik’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Milhem Calderon
44715 Prentice Drive, Unit 53
Ashburn, VA 20146
Telephone – +1 855 563 9546
Email – Milhem@limbik.com
11. General Provisions
11.1 Entire Agreement
This Agreement, together with the Privacy Policy and the applicable Plan(s), constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between this Agreement and the Plan, the terms and conditions in the Plan will prevail and be controlling, and the terms and conditions in the Agreement will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for the Services upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, 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 this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any government authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
11.2 Governing Law
This Agreement 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. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be
the state or federal courts located in New York having jurisdiction over Limbik’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, 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.
11.3 Remedies
Except as specifically provided otherwise, each right and remedy in this Agreement 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, the non-breaching party may suffer irreparable damage for which it may 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.
11.4 Notices
Except as otherwise provided in Sections 9.1 and 10, any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepared and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
11.5 Assignment
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in party, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale or assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.6 Independent Contractors
The parties shall be independent contractors under this Agreement, 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.
11.7 Publicity
Neither party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
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