ANYSCALE PLATFORM TERMS AND CONDITIONS
These Platform Terms and Conditions (the “Terms”) are entered into as of the Effective Date between Anyscale, Inc. (“Anyscale” or “we”) and Customer (as defined below) and state the terms and conditions by which Anyscale will deliver and Customer will receive any or all of the services provided by Anyscale (“Anyscale Services”), including but not limited to the Platform Services (as defined below), as set forth in an Order (as defined below) referencing these Terms (the Order together with these Terms, the “Agreement”). Anyscale and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
If you are entering into the Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you are authorized to bind that entity to the Agreement, in which case “Customer,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind your entity or do not agree with any provision of these Terms, you must not enter into the Agreement and may not use the Anyscale Services. Additionally, If you are a monthly Pay-As-You-Go User of Anyscale Services, you acknowledge that Anyscale may make changes to the Terms and pricing from time to time and your continued use of the Anyscale Services will constitute consent to such changes and such use shall be subject to the current published version of these Terms at anyscale.com/terms; if you do not agree to the revised Terms, you must stop using the Anyscale Services. Your use of the Anyscale Service following an update posted to these Terms shall constitute your agreement to the new version.
1. OVERVIEW.
1.1 Definitions.
(a) “Acceptable Use Policy” means the acceptable use policy governing the Platform Services located at anyscale.com/aup.
(b) “Affiliate” of a Party means an entity that controls, is actually or in effect controlled by, or is under common control with such Party.
(c) “AI Services” means services and features within the Platform Services, including Anyscale Endpoints, where Anyscale makes available a Generative AI Model for direct use by Customer.
(d) “Authorized User” means an employee or contractor of Customer (and to the extent permitted by an Order Form, Customer’s Affiliates) whom Customer has authorized to access and/or use the Platform Services on Customer’s behalf.
(e) “Anyscale IP” means the Platform Services, the underlying software provided in conjunction with the Platform Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform Services, Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(f) “Beta Service” means any feature of the Platform Services that is clearly designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that Anyscale at its sole discretion offers to Customer, and Customer at its sole discretion elects to use.
(g) “Customer Code” means any code (including machine learning models) or other machine instructions that Customer chooses to instruct the Platform Services to process on Customer’s behalf, including where applicable code from Third-Party Applications.
(h) “Customer Data” means any data or data files of any type made available to the Platform Services for processing by or on behalf of Customer.
(i) “Customer Property” means, collectively, Customer Code and Customer Data.
(j) “Data Protection Claims” means any claims arising from Anyscale’s breach of Section 5 (Confidential Information), Section 2.3 (Data Privacy), or Section 2.4 (Data Security), where such breach results in a Personal Data Breach, as defined in Section 1.8 of the DPA.
(k) “Data Security Addendum” means the Anyscale Security Addendum located at anyscale.com/security-addendum, which is incorporated by reference into this Agreement.
(l) “Documentation” means the documentation related to the Platform Services located at docs.anyscale.com and docs.ray.io, excluding for the avoidance of doubt any content generated by any chatbots or similar tools accessible on such sites.
(m) “DPA” means the Data Processing addendum located at anyscale.com/dpa, which is incorporated by reference into this Agreement solely with respect to use of Anyscale Services by companies or other legal entities to process Customer Personal Data (as defined in the DPA); if you are an individual, the DPA is not incorporated and does not apply.
(n) “Effective Date” means the earliest to occur of: (i) the effective date of the initial Order Form that references these Terms, (ii) the date of last signature of the Terms, or (iii) the date you first access or use the Platform Services.
(o) “Generative AI Models” means machine learning models designed to take input and generate output; Generative AI Models may be Third Party Applications as indicated in the Platform Services and/or Documentation.
(p) “Generative AI Supplement” or "GenAI Supplement" means the supplementary terms located at anyscale.com/gen-ai-terms applicable to the use of AI Services.
(q) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trademarks, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(r) "Order" means an order form ("Order Form"), online order (including the provisioning of any Anyscale Services) or similar agreement for the provision of Anyscale Services, entered into by the parties or any of their Affiliates, incorporated by reference into, and governed by, the Agreement; by entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
(s) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
(t) “Platform Services” means Anyscale’s proprietary software-as-a-service platform, and all associated technology and services provided thereon, including any associated software development kits and application programming interfaces, in object code format only, which is made available by Anyscale to Customer pursuant to an Order, to facilitate the development and building of machine learning applications and scale computing; Platform Services includes AI Services.
(u) “Sample Data” means any data (including from third-party sources) provided or made available to Customer by Anyscale solely for Customer’s internal testing, evaluation, and other non-productive use of the Platform Services during the Subscription Term.
(v) “Subscription Term” means the period of time during which Customer is authorized to access the relevant Anyscale Services, as specified in an applicable Order.
(w) “Third-Party Applications” means separate or third-party data, code (including machine learning models), services, offerings, or applications that Customer may use (including that Anyscale may provide to Customer, including Generative AI Models) that interoperate with the Platform Services and are subject to Customer’s agreement with a third party.
(x) “Usage Data” means data and information relating to the operation and/or performance of the Platform Services, including log data and metadata (e.g., object properties).
2. PLATFORM SERVICES; ACCESS AND USE.
2.1 Platform Services.
(a) Access. Subject to the terms and conditions of this Agreement, Anyscale hereby grants to Customer a limited, non-exclusive, non-transferable right to permit Customer’s Authorized Users to access and use the Platform Services during the Subscription Term, solely for Customer’s internal business purposes.
(b) Suspension and Termination.
(i) Suspension. Anyscale may temporarily suspend your and/or your Authorized Users access to the Platform Services at any time: (a) immediately without notice if Anyscale reasonably suspects that you have violated your obligations under Section 2.2 (Customer Responsibilities) in a manner that may cause material harm or material risk of harm to Anyscale or to any other Party; or (b) upon written notice, if you are more than thirty days delinquent in payment.
(ii) Monthly Pay-As-You-Go (PAYG) Services. Notwithstanding anything in the Agreement to the contrary, Anyscale may (i) suspend your account for non-payment at any time; and (b) suspend or terminate any Platform Services provided on a month-to-month basis with payment based only on Customer’s usage of the Platform Services (“Pay-As-You-Go User”) during the billing month and may delete your Anyscale Platform Services account(s) and any Customer Property related thereto within Anyscale’s systems, upon thirty (30) days’ prior written notice if Anyscale reasonably determines the account is inactive as set forth in the Acceptable Use Policy.
(c) Sample Data; Third-Party Applications.
(i) Sample Data. Anyscale may make Sample Data available for Customer. Customer acknowledges that Sample Data may not be complete, current, or accurate. Customer will not (and will not permit any third party to) copy or export any Sample Data and agrees that Anyscale may delete or require Customer to cease using Sample Data at any time upon advance notice.
(ii) Third-Party Applications. Anyscale may also provide Third-Party Applications, as well as links to or interconnectivity within the Platform Services to facilitate Customer’s use of Third-Party Applications at Customer’s sole discretion. Notwithstanding the foregoing, any procurement or use of Third-Party Applications is subject to the terms set by the third party and solely between Customer and the applicable third party and Anyscale will have no liability for such Third-Party Applications.
2.2 Customer Responsibilities.
(a) Authority. Customer represents and warrants that: (i) it has obtained and will obtain and continue to have, during the Subscription Term, all necessary rights, authority and licenses for the access to and use of the Customer Property (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement, and (ii) the use of the Platform Services by Customer, including the processing by Anyscale of Customer Property in accordance with this Agreement, will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
(b) Authorized Users. Customer will not allow any Person other than Authorized Users to access or use the Platform Services. Customer may permit Authorized Users to access and/or use the Platform Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement. Customer will be responsible for all acts, omissions and obligations of Authorized Users in connection with the activities contemplated by this Agreement and/or the Platform Services, as though such acts, omissions and/or obligations were those of Customer. Customer will, and will require all Authorized Users to, use all reasonable means to secure access credentials, hardware and software used to access the Platform Services in accordance with customary security protocols, and will promptly notify Anyscale if Customer knows or reasonably suspects that any access credential has been compromised.
(c) Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) access or use the Platform Services in any manner beyond the scope of rights expressly granted in this Agreement (including without limitation by violating the Acceptable Use Policy); (ii) modify or create derivative works of the Platform Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease any access or use of the Platform Services to any other Person, or otherwise allow any Person to access or use the Platform Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) access or use the Platform Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Platform Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform Services features provided by Anyscale for use expressly for such purposes; or (viii) access or use the Platform Services, to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform Services.
2.3 Data Privacy. Provided that you are acting on behalf of an entity rather than an individual and are using the Anyscale Services to process Customer Personal Data (as defined in the DPA), the Parties will comply with the DPA.
2.4 Data Security. The Parties will comply with the Data Security Addendum.
2.5 Usage Data. Notwithstanding anything to the contrary in this Agreement, Anyscale may collect and use Usage Data to develop, improve, support, and operate its products and services. Anyscale will not share or sell any Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 5 (Confidentiality) of this Agreement, or (b) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Authorized Users cannot be identified. Usage Data is not Customer Property.
2.6 Support. Anyscale will provide Customer with the level of support services, if any, specified in the applicable Order Form (“Support Services”) in accordance with the terms of such Order Form.
3. INTELLECTUAL PROPERTY
3.1 Rights in Anyscale IP. Subject to the limited rights expressly granted hereunder, Anyscale reserves and, as between the Parties will solely own, the Anyscale IP and all rights, title and interest in and to the Anyscale IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
3.2 Rights in Customer Property. As between the Parties, Customer or its licensors retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Property and any modifications made thereto in the course of operation of the Platform Services. Subject to the terms of this Agreement, Customer hereby grants to Anyscale and its Affiliates a non-exclusive, worldwide, royalty-free right and license to process the Customer Property solely to the extent necessary to provide the Anyscale Services, to prevent or address service or technical problems therein, or as may be required by law.
3.3 Feedback. From time to time Customer or its employees, contractors, or representatives may provide Anyscale with suggestions, comments, feedback or the like with regard to the Platform Services (collectively, “Feedback”). Anyscale may freely use and incorporate any Feedback into Anyscale’s products and services.
4. FEES AND PAYMENT.
4.1 Fees. All amounts due under this Agreement or any Order ("Fees") shall be paid in full in accordance with the terms set forth therein without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.2 Payments. Unless specified otherwise in an Order (a) all Fees owed to Anyscale will be paid in U.S. Dollars; (b) invoiced payments will be due within 30 days of the date of your receipt of each invoice; (c) Fees paid by credit card will be immediately due and payable; (d) Fees for all prepaid committed Anyscale Services will be invoiced in full upon execution of the applicable Order Form; and (e) all excess usage will be invoiced monthly in arrears. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month. All payment of Fees are non-refundable and non-transferable except as expressly provided in this Agreement.
4.3 Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Anyscale hereunder, other than any taxes imposed on Anyscale’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Anyscale hereunder, Customer will notify Anyscale prior to making payment and Customer will pay an additional amount, so that Anyscale receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
5. CONFIDENTIAL INFORMATION.
5.1 Definition. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, any nonpublic features or information related to the Platform Services will be deemed Confidential Information of Anyscale, and Customer Property will be treated as Confidential Information of Customer. However, Confidential Information will not include any information or materials that: (a) are at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (b) are rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (c) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (d) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
5.2 Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The provisions of this Section 5.2 will supersede any non-disclosure agreement by and between the Parties (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Property and such agreement will have no further force or effect with respect to Customer Property.
6. WARRANTIES.
6.1 Platform Services Warranties. Anyscale warrants that the Platform Services will operate in substantial conformity with the applicable Documentation. If Anyscale is not able to materially correct any reported non-conformity with this warranty, either Party may terminate the applicable Order, and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Platform Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Platform Services, modifications to the Platform Services by Customer or any third-party, or third-party hardware, software, or services used in connection with the Platform Services.
6.2 Mutual Warranties. Each Party hereby warrants to the other Party that: (a) if it is a company or other legal entity, it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM SERVICES AND OTHER ANYSCALE IP ARE PROVIDED ON AN “AS IS” BASIS, AND ANYSCALE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE ANYSCALE IP, THE PLATFORM SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANYSCALE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ANYSCALE HEREBY DISCLAIMS ANY RESPONSIBILITY FOR THE RESULTS OBTAINED FROM THE USE OF THE ANYSCALE SERVICES OR THE CONCLUSIONS DRAWN FROM SUCH USE AND ANY WARRANTY THAT USE OF THE PLATFORM SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
7. INDEMNIFICATION.
7.1 Anyscale Indemnification. Subject to Sections 7.2 and 7.5, Anyscale will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) against Customer alleging that Customer’s authorized access or use of the Platform Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Anyscale (including reasonable attorneys’ fees) resulting from such Claim.
7.2 Exclusions. Anyscale’s obligations under Section 7.1 will not apply if the underlying third-party Claim arises from or as a result of: (a) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (b) any Customer Property; (c) Customer’s failure to use any enhancements, modifications, or updates to the Platform Services that have been provided by Anyscale; (d) modifications to the Platform Services by anyone other than Anyscale; or (e) combinations of the Platform Services with software, data or materials not provided by Anyscale.
7.3 IP Remedies. If Anyscale reasonably believes the Platform Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Anyscale may, at its sole option and expense use commercially reasonable efforts to: (a) modify or replace the Platform Services, or any component or part thereof, to make it non-infringing; or (b) procure the right for Customer to continue using the Platform Services. If Anyscale determines that neither alternative is commercially practicable, Anyscale may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Anyscale will refund to Customer a pro-rata portion of the Fees that have been prepaid for the applicable Platform Services. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform Services.
7.4 Customer Indemnification. Subject to Section 7.5, Customer will defend Anyscale against Claims arising from (a) any Customer Property, including without limitation a Claim that Customer Property infringes any third party’s Intellectual Property rights; or (b) access or use of the Platform Services in breach of this Agreement; and in each case, will indemnify and hold harmless Anyscale against from Anyscale’s reasonable attorneys’ fees and any damages and costs awarded against Anyscale or agreed in settlement by Customer resulting from such Claim.
7.5 Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party in writing (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. LIMITATIONS OF LIABILITY.
8.1 Exclusion of Damages. EXCEPT FOR: (A) ANY LIABILITY WHICH CANNOT BE EXCLUDED BY LAW (E.G., FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY), (B) BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTION 2.2(c), (C) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, AND (D) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 ((A)-(D), THE “EXCLUDED CLAIMS”), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR CORRUPTION OF DATA, OR LOSS OF INCOME, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ANYSCALE IP OR THE PROVISION OF THE PLATFORM SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 Total Liability. EXCEPT FOR THE EXCLUDED CLAIMS AND AS SET FORTH IN SECTIONS 8.3 AND 8.5, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE ANYSCALE IP, OR THE PROVISION OF THE PLATFORM SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ANYSCALE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (“GENERAL LIABILITY CAP”).
8.3 Data Protection Claims. EXCEPT FOR THE EXCLUDED CLAIMS, IN NO EVENT WILL ANYSCALE’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES IN CONNECTION WITH DATA PROTECTION CLAIMS EXCEED TWO (2) TIMES THE GENERAL LIABILITY CAP, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ANYSCALE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (“DATA PROTECTION CLAIMS CAP”).
8.4 Liability Not Cumulative. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP. SIMILARLY, THOSE CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE DATA PROTECTION CLAIMS CAP. ADDITIONALLY, THE APPLICABLE MONETARY CAPS SET FORTH IN SECTION 8 WILL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) GOVERNING CUSTOMER’S USE OF THE ANYSCALE SERVICES, INCLUDING THOSE ENTERED INTO BETWEEN ANYSCALE AND ANY CUSTOMER AFFILIATES.
8.5 Beta Services. NOTWITHSTANDING ANYTHING CONTAINED ABOVE, ANYSCALE’S LIABILITY RELATING TO BETA SERVICES OR ANY ANYSCALE SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY ANYSCALE SERVICES PROVIDED DURING A FREE TRIAL PERIOD, WILL BE LIMITED TO FIVE THOUSAND US DOLLARS (USD $5,000).
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement begins on the Effective Date and will continue until terminated in accordance with its terms. The Subscription Term of each Order will be as defined therein.
9.2 Termination. Either Party may terminate this Agreement (including all outstanding Orders) if (a) the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice, at the end of such period; or (b) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party and is not dismissed within 60 days, at the end of such period. In addition, either Party may terminate this Agreement upon written notice to the other Party if there are no outstanding Orders.
9.3 Survival. This Section 9.3 and Sections 1, 2.2(c), 3.1, 3.3, 4, 5, 6.3, 7, 8, 9.4, and 10 survive any termination or expiration of this Agreement.
9.4 Effect of Termination. Upon expiration or termination of this Agreement: (a) the rights granted pursuant to Section 2.1 will terminate and Customer will destroy any stored copies of the Anyscale IP; and (b) each Party will, upon written request, return or destroy all Confidential Information of the other Party in its possession or control. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination or entitle Customer to any refund.
10. GENERAL.
10.1 Entire Agreement. This Agreement, including all Orders and any exhibits, the DPA and the Data Security Addendum, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
10.2 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the address or email address set forth in the Order or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 10.2. Such notices will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party.
10.3 Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
10.4 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
10.5 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Subject to Section 10.6, any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
10.6 Informal Resolution; Arbitration.
(a) Informal Resolution. You agree with us that, if either of us has concerns, we must first work together to resolve any dispute informally without resorting to legal action. You agree to contact us at legal@anyscale.com in the event you have a dispute prior to bringing a formal claim against Anyscale. If the dispute is not resolved within 30 calendar days from the notice date, either of us may bring a claim subject to the procedures set forth below.
(b) Applicability of Arbitration Agreement. If you use the Anyscale Services on behalf of yourself, and not on behalf of an organization or business, you agree that all disputes between us will be resolved by binding arbitration as described in sub-paragraphs 10.6.c. – 6.i. below. If you use the Anyscale Services on behalf of a business or organization, You and Anyscale agree to resolve any dispute, claim, or controversy that relates to or arises in connection with the Platform Services pursuant to Section 10.5.
(c) Agreement to Arbitrate. If you are located within the United States, you and Anyscale agree that any dispute, claim, or controversy between you and Anyscale arising in connection with or relating in any way to these Terms or to your relationship with Anyscale as a user of the Anyscale Services (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms) will be determined by mandatory binding individual (not class) arbitration. You and Anyscale further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. The Arbitration Agreement will survive termination of the Terms. You and Anyscale agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of the Arbitration Agreement (despite the choice of law provision above).
(d) Exceptions to Arbitration. Notwithstanding the prior clause, you and Anyscale both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
(e) Prohibition of Class and Representative Actions and Non-Individualized Relief. You and Anyscale agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Anyscale agree otherwise, the arbitrator(s) may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator(s) may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Anyscale customers.
(f) Arbitration Procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of these Terms as a court would. The arbitration will be conducted by the American Arbitration Association (referred to as the "AAA") under its rules and procedures that the AAA decides apply to the dispute. The AAA's rules and forms to commence arbitration are available at www.adr.org. A party who intends to seek arbitration must first send the other party, if to Anyscale, by certified mail, a completed Demand for Arbitration. You should send this notice to Anyscale at: Anyscale, Inc., Attn: Legal Department, Re: Demand for Arbitration, 55 Hawthorne St, Fl 9, San Francisco, CA 94105 USA (with a copy to legal@anyscale.com). Anyscale will send any notice to you to the address we have on file associated with your Anyscale account (which may solely be at your account email address); it is your responsibility to keep your address up to date. All information called for in the notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Anyscale may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Anyscale subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Anyscale may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by you or Anyscale shall not be disclosed to the arbitrator(s). The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different Anyscale customers, but is/are bound by rulings in prior arbitrations involving the same Anyscale customer to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(g) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Arbitration Agreement.
(h) Severability. With the exception of any of the provisions in the Prohibition of Class and Representative Actions and Non-Individualized Relief section above, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall still apply. If a court decides that any of the provisions in the Prohibition of Class and Representative Actions and Non-Individualized Relief section above is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in court; in such case you irrevocably consent to the personal jurisdiction of the state and federal courts in the Northern District of California and such dispute shall be governed by the laws of the state of California, without regard to choice or conflicts of law principles. All other disputes subject to arbitration under the terms of the Arbitration Agreement shall be arbitrated under its terms.
(i) Amendments to Arbitration Agreement. Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this Arbitration Agreement (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Anyscale prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Arbitration Agreement that have arisen or may arise between you and Anyscale. We will notify you of amendments to this Arbitration Agreement by posting the amended terms on anyscale.com/terms at least 30 days before the effective date of the amendments and by providing notice through email where possible. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
10.7 Assignment. Neither Party may assign, transfer or novate this Agreement, by operation of law or otherwise (“Assign”), without the other Party’s prior written consent, provided that subject to the remainder of this Section, either Party may freely Assign this Agreement to a successor in interest upon a merger or other change of control transaction or in connection with a sale of all or substantially all of a Party’s assets (“Change of Control”); and Anyscale may Assign this Agreement in its entirety to an Affiliate. Each party shall promptly provide notice of any such Assignment. Any attempt to Assign this Agreement in violation of this Section will be void. If a Party Assigns this Agreement to a direct competitor of the other Party in connection with a Change of Control of such Party or the Assignment would cause the other Party to become in violation of applicable laws that is not reasonably addressable, such other Party may terminate the Agreement upon written notice within thirty days of receiving notice of the Change of Control. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
10.8 Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer’s obligations, Section 2.2(c), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10.9 Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics (including but not limited to SARS-CoV-2 (COVID-19) or any mutation thereof), epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
10.10 Publicity. Subject to the provisions of Section 5, each Party will have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the term of this Agreement, Anyscale may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Anyscale’s website and in its marketing materials to identify Customer as Anyscale’s customer, and for the purpose of providing the Platform Services and any Professional Services to Customer, provided that Anyscale will use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.
10.11 Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Platform Services or software outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
10.12 U.S. Government End Users. The Platform Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
10.13 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
10.14 No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
10.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Last updated May 23, 2024.