Terms of Service

Please read these Terms of Service (these “Terms”) carefully. These Terms constitute a legally binding agreement between Unbox Inc., a Delaware corporation doing business as Openlayer (“Openlayer,” “Unbox,” “we,” “us,” or “our”), and the entity or individual that accepts these Terms or accesses or uses the Services (“you,” “your,” or “Customer”). These Terms govern your access to and use of Openlayer’s artificial intelligence and machine learning evaluation, testing, observability, and monitoring platform, together with the related software, client applications, SDKs, APIs, and hosted subscription services that Openlayer makes available, whether delivered as a multi-tenant cloud service or deployed in a customer-controlled (self-hosted or on-premise) environment (collectively, the “Services”). These Terms, together with the applicable Order Form, Openlayer’s Privacy Policy, and, where applicable, the Data Processing Agreement (the “DPA”), are referred to collectively as this “Agreement.”

If you access or use the Services on behalf of an entity (for example, your employer or another organization), you represent and warrant that you have authority to bind that entity to these Terms, and references to “you” and “Customer” apply to both you individually and that entity, jointly and severally, for all obligations and liabilities under these Terms.

BY ACCEPTING THESE TERMS, EXECUTING AN ORDER FORM OR ISSUING A PURCHASE ORDER IN RELATION TO AN ORDER FORM, OR ACCESSING OR USING THE SERVICES IN ANY WAY, YOU AGREE TO BE BOUND BY THESE TERMS.

By agreeing to these Terms, you represent that (a) you have read, understood, and agree to be bound by these Terms and the Openlayer Privacy Policy; (b) you are at least 18 years of age and able to form a binding contract; and (c) you have all the necessary right, power and authority to enter into these Terms. If you do not agree, you may not access or use the Services.

If you have entered into a separate written master services agreement, SaaS agreement, or similar negotiated agreement with Openlayer governing your use of the Services (a “Separate Signed Agreement”), the Separate Signed Agreement controls over these Terms with respect to any conflict.

THESE TERMS CONTAIN PROVISIONS THAT ALLOCATE RISK BETWEEN THE PARTIES, INCLUDING A LIMITATION OF LIABILITY AND INDEMNIFICATION OBLIGATIONS, AS WELL AS A BINDING ARBITRATION PROVISION AND A CLASS-ACTION WAIVER THAT, EXCEPT IN LIMITED CIRCUMSTANCES, REQUIRE DISPUTES TO BE RESOLVED ON AN INDIVIDUAL BASIS RATHER THAN IN COURT.

1. The Services and Support

1.1 Provision of Services. Subject to the terms of this Agreement (including payment of all applicable Fees), Openlayer will use commercially reasonable efforts to provide Customer (a) the Services solely for Customer’s internal business operations in accordance with (and subject to) the terms, Service Capacity limitations, and other restrictions of each Order Form, and (b) reasonable support services in accordance with Openlayer’s standard policies and practices. An “Order Form” means a Services quote, order form, online order, or other Openlayer ordering document (including through a channel partner) that references these Terms and specifies the Services, usage entitlements, and applicable Fees. Capitalized terms not defined in these Terms have the meaning set forth in the applicable Order Form.

1.2 Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period, or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release, or the like. Evaluation Services are for Customer’s internal evaluation purposes only and not for production use, are not supported, are provided “as is” without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire 60 days from the trial start date. Openlayer may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Openlayer will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.

1.3 Authorized Users. Customer may permit its employees and contractors (each, an “Authorized User”) to access the Services on Customer’s behalf, provided that Customer remains responsible for each Authorized User’s compliance with these Terms and for all acts and omissions of its Authorized Users. Customer will require Authorized Users to use reasonable means to secure their credentials and will promptly notify Openlayer if Customer knows or reasonably suspects that any credential has been compromised.

1.4 Third Party Services. The Services may provide, or third parties may provide, links, integrations, or other access to third-party sites, services, content, and resources, including third-party large language model and AI providers that Customer chooses to connect or that power features Customer enables (collectively, “Third Party Services”). Openlayer has no control over any such Third Party Services and is not responsible for and does not endorse any Third Party Services. Customer acknowledges and agrees that (i) any dealings Customer has with any Third Party Services are solely between Customer and the relevant third party and are subject to the relevant terms and privacy policies of such Third Party Services, and (ii) Openlayer will not be responsible or liable for, and Customer agrees to hold Openlayer harmless from and against, any damages, liabilities, losses, or expenses arising from or relating to any Third Party Services or Customer’s use thereof. Customer is solely responsible for obtaining any licenses, consents, and authorizations necessary to access and use Third Party Services in compliance with applicable law and the applicable third party’s terms.

2. License; Restrictions and Responsibilities

2.1 License. Subject to the terms of this Agreement, Openlayer grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term solely for Customer’s internal business operations. With respect to any software that Openlayer provides to Customer for use on Customer premises or devices, including any self-hosted or on-premise deployment (the “Software”), Openlayer grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely during the Term and solely internally in connection with the Services and for no other purpose; provided that any Software provided under an open source license is governed by the terms thereof in lieu of the foregoing. All Software (other than open source) is Confidential Information of Openlayer and subject to Section 4. Openlayer reserves all rights not expressly granted in these Terms.

2.2 Restrictions. Customer will use the Services only as expressly permitted in these Terms and subject to any terms or restrictions in the applicable Order Form (including any Service Capacity limits). Customer further agrees that it will not, directly or indirectly, and will not permit any Authorized User or other person to:

• reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any Software (including any applications, APIs, and the like), documentation, or data related to the Services;
• modify, translate, or create derivative works based on the Services or any Software, except to the extent expressly permitted by Openlayer in writing or authorized within the Services;
• use or disclose the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
• use or access the Services or any Software to develop a product or service that is competitive with the Services, or engage in competitive analysis or benchmarking;
• remove any proprietary notices or labels; or
• modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or their related systems or networks.

2.3 Acceptable Use. Without limiting the foregoing, Customer will not, and will not permit any user to, use the Services: (a) in violation of any applicable law or the rights of any third party; (b) to submit or process any content that is unlawful, infringing, or that Customer lacks the rights, authorizations, consents, or lawful basis to submit; (c) in any manner that violates the acceptable use, usage, or similar policies of any third-party model provider or other Third Party Service; or (d) to make, without meaningful human review, any decision that produces legal or similarly significant effects concerning an individual, including decisions relating to credit, employment, housing, insurance, healthcare, or access to essential goods or services.

2.4 Compliance; Monitoring. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Openlayer’s standard published policies and codes of conduct then in effect and all applicable laws and regulations (including, without limitation, those relevant to privacy, data protection, and intellectual property). Although Openlayer has no obligation to monitor Customer’s use of the Services, Openlayer may do so and may prohibit any use of the Services (or disable content or data) that it believes may be, or is alleged to be, in violation of the foregoing or any other term of these Terms.

2.5 Customer Responsibilities. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services (collectively, “Equipment”). Customer is also responsible for maintaining the security of the Equipment, its account, and its passwords (including administrative and user passwords), and for all use of its account or the Equipment, with or without Customer’s knowledge or consent.

3. Fees and Payment

3.1 Fees. Customer will pay Openlayer the then-applicable Fees for the Services as described in the relevant Order Form (or in the Services themselves, as applicable) in accordance with the terms therein. All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. If Customer’s use of the Services exceeds any applicable limits set forth on the Order Form or Services (for example, Service Capacity limits) or otherwise requires the payment of additional fees, Customer will be billed for, and agrees to pay, such usage. Openlayer may change the Fees or applicable charges and institute new charges and Fees at the end of the initial Term or then-current renewal Term, upon thirty (30) days’ prior notice to Customer (which may be sent by email).

3.2 Invoicing; Billing Disputes; Taxes. Openlayer may bill through an invoice, in which case full payment for invoices issued must be received by Openlayer thirty (30) days after the invoice date. Unpaid amounts are subject to a finance charge of the lesser of 1.5% per month or the maximum rate permitted by law, plus all expenses of collection, and may result in suspension or termination of the Services. If Customer believes it has been billed incorrectly, Customer must contact Openlayer no later than sixty (60) days after the closing date on the first billing statement in which the error appeared to receive an adjustment or credit; undisputed amounts remain payable when due. Customer is responsible for all taxes associated with the Services other than U.S. taxes based on Openlayer’s net income.

4. Confidentiality; Data; Proprietary Rights

4.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of Openlayer includes all Software and non-public information regarding the features, functionality, and performance of the Services; Proprietary Information of Customer includes Customer Data. The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person (except employees and contractors involved in the Services who are bound by consistent terms) any such Proprietary Information. The foregoing does not apply to information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.

4.2 Customer Data. “Customer Data” means all data, content, and materials that Customer or its authorized users submit to, upload to, or generate through the Services, including datasets, model inputs and outputs, prompts and completions, traces, spans, inference logs, evaluation results, and associated metadata. As between the parties, Customer retains all right, title, and interest in and to Customer Data. Customer grants Openlayer a non-exclusive, worldwide license to host, copy, process, transmit, and display Customer Data solely as necessary to provide, maintain, secure, and support the Services for Customer, to prevent or address technical or security problems, and as otherwise instructed by Customer or required by law. Customer acknowledges that the Services are designed to ingest and process data of Customer’s choosing, which may include personal information of Customer’s own end users. Customer is solely responsible for the Customer Data it submits and represents, warrants, and covenants that it has and will maintain all rights, authorizations, consents, and lawful bases necessary for Openlayer to process Customer Data as contemplated by these Terms, and that Customer Data and its use of the Services comply with all applicable laws. Where Openlayer processes personal data contained in Customer Data on Customer’s behalf, such processing is governed by Openlayer’s Data Processing Agreement, which is incorporated into these Terms by reference when applicable.

4.3 Ownership; Feedback. Customer retains all right, title, and interest in and to Customer Data and all other Customer technology and intellectual property rights. Openlayer owns and retains all right, title, and interest in and to (a) the Services and Software and all improvements, enhancements, and modifications; (b) any software, applications, inventions, or other technology developed in connection with the Services or support; and (c) all intellectual property rights related to the foregoing. If Customer provides any suggestions, comments, or feedback regarding the Services (“Feedback”), Openlayer will have the full, free, and unencumbered right to use and exploit the Feedback in connection with its business in perpetuity, without obligation or attribution. No rights or licenses are granted except as expressly set forth in these Terms.

4.4 Usage Data; No Training on Customer Data. Openlayer may collect and analyze configuration, performance, and usage data and information relating to the provision, use, and operation of the Services (including telemetry, log, and diagnostic data) and will be free, during and after the Term, to (i) use such information to maintain, secure, improve, and enhance the Services and other Openlayer offerings, and (ii) otherwise use and disclose such information solely in aggregated or de-identified form that does not identify Customer or any natural person. Openlayer does not use Customer Data to train, fine-tune, or otherwise develop its own or any third party’s foundation or machine learning models, and does not sell Customer Data. Where the Services send Customer Data to third-party model providers to deliver features Customer enables, Openlayer engages those providers under terms intended to prohibit their use of Customer Data to train their models and to limit their retention of such data.

5. AI Features and Model Providers

5.1 Managed AI Features. The Services include features that rely on artificial intelligence and large language models, such as automated evaluations, LLM-as-a-judge scoring, and AI-assisted insights and assistants. For Openlayer’s managed AI features (such as the Openlayer Assistant and AI-assisted insights), Openlayer transmits relevant portions of Customer Data to a third-party model provider that Openlayer engages as a subprocessor. The specific provider(s) so engaged are identified in, or made available through, Openlayer’s Privacy Policy and Trust Center subprocessor disclosures, and are subject to change in accordance with that Privacy Policy.

5.2 Customer-Configured Model Providers. For evaluations and LLM-as-a-judge, and where Customer otherwise connects its own model providers, Customer configures the third-party model providers, credentials, and endpoints used with the Services. Where Customer does so, those providers process data under Customer’s own account and agreements, Customer is responsible for their terms and data practices, and such providers are Customer’s vendors and Third Party Services under Section 1.4, not Openlayer subprocessors.

5.3 AI Output. The Services may generate output, scores, evaluations, and other results using AI systems (“Output”). AI Output may be inaccurate, incomplete, or otherwise unsuitable for Customer’s purposes, may not be unique, and should not be relied upon as a sole basis for decisions without independent human review. Customer is responsible for evaluating the accuracy and appropriateness of Output for its use case.

6. Security

6.1 Security Measures. Openlayer will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Openlayer will maintain reasonable administrative, physical, and technical safeguards, including encryption of Customer Data in transit and at rest, to protect the security and integrity of Customer Data. Additional detail regarding Openlayer’s security practices is described in Openlayer’s Privacy Policy and Trust Center and made available to Customer on request.

7. Term; Suspension; Termination

7.1 Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the Term and will automatically renew for additional periods of the same duration as the initial Term, unless either party requests termination at least sixty (60) days prior to the end of the then-current Term. As used in this Agreement, “Term” means (a) the subscription period during which Customer is authorized to access and use the Services; or (b) the subscription period specified in the applicable Order Form or during Customer’s registration process, provided that if no Term is specified in the Order Form or during Customer’s registration process, the initial Term (and each renewal) will be twelve (12) months from commencement of the Services.

7.2 Suspension. Openlayer may suspend Customer’s access to the Services, in whole or in part, if (a) any undisputed amount is more than fifteen (15) days past due, (b) Customer’s use presents a security risk or threatens the integrity or availability of the Services or could subject Openlayer to liability, or (c) suspension is required by law. Openlayer will use reasonable efforts to notify Customer and will restore access promptly once the cause is resolved.

7.3 Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or immediately upon notice in the case of nonpayment or a breach of Section 2.2 or Section 2.3) if the other party materially breaches any term or condition of this Agreement and such breach is not cured during the notice period.

7.4 Effect of Termination. Upon termination, Customer’s right to use the Services will immediately terminate, all outstanding Fees due for the Services for the entire Term (regardless of any early termination) will immediately become due and payable, Customer will return (or at Openlayer’s option destroy) all Software, and each party will return to the other all Proprietary Information. Upon request made within thirty (30) days after the effective date of termination, Openlayer will make Customer Data available to Customer for export; thereafter, Openlayer may delete Customer Data in the ordinary course in accordance with its data retention practices and the applicable Data Processing Agreement. Sections 2, 3, 4, 5, 9, 10, 11, and 12, and any other provision that by its nature should survive, will survive expiration or termination of this Agreement.

8. Support and Service Levels

Openlayer will provide technical support in accordance with its then-current standard support practices and any service-level commitments set forth in the applicable Order Form. Except as expressly stated in an Order Form, the Services are not subject to any uptime or availability warranty, and any service-level remedies are as stated in that Order Form.

9. Warranties; Disclaimer

9.1 Service Maintenance. Openlayer will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, whether by Openlayer or by third-party providers, or because of other causes beyond Openlayer’s reasonable control, but Openlayer will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. Openlayer does not warrant that the Services will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from use of the Services, including any AI Output.

9.2 AI Disclaimer. THE SERVICES USE ARTIFICIAL INTELLIGENCE AND LARGE LANGUAGE MODELS. ANY OUTPUT, SCORES, EVALUATIONS, RECOMMENDATIONS, OR OTHER RESULTS GENERATED BY THE SERVICES (“AI OUTPUT”) ARE PROVIDED “AS IS.” OPENLAYER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, OR SUITABILITY OF ANY AI OUTPUT, WHICH MAY BE INACCURATE OR INCOMPLETE AND MAY NOT BE UNIQUE, AND CUSTOMER IS RESPONSIBLE FOR REVIEWING AND VERIFYING ANY AI OUTPUT AND MUST NOT RELY ON IT AS A SOLE BASIS FOR DECISIONS WITHOUT INDEPENDENT HUMAN REVIEW.

9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND OPENLAYER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. OPENLAYER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.

10. Indemnification

10.1 By Openlayer. Openlayer will hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or copyright or misappropriation of any trade secret, provided Openlayer is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Openlayer will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to the Services or any portions or components thereof (i) not supplied by Openlayer; (ii) made in whole or in part in accordance with Customer specifications; (iii) modified after delivery; (iv) combined with other products, processes, or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If the Services become, or in Openlayer’s opinion are likely to become, the subject of an infringement claim, Openlayer may at its option and expense (a) procure the right for Customer to continue using the Services, (b) modify or replace the Services to be non-infringing while preserving materially equivalent functionality, or (c) if neither is commercially practicable, terminate the affected Services and refund any prepaid, unused Fees. This Section 10.1 states Openlayer’s entire liability and Customer’s exclusive remedy for any infringement or misappropriation claim.

10.2 By Customer. Customer will indemnify Openlayer from all damages, settlements, attorneys’ fees, and expenses related to (i) any claim of infringement or misappropriation excluded from Openlayer’s indemnity obligation by the preceding subsection; (ii) Customer Data or Customer’s submission of Customer Data to the Services, including any claim that such data infringes, misappropriates, or violates the rights of any third party or applicable law; or (iii) any other claim arising from or in connection with Customer’s breach of this Agreement or Customer’s use of the Services (except to the extent covered by Openlayer’s indemnity obligation above).

10.3 Procedure. The party seeking indemnification (the “Indemnitee”) will promptly notify the other party (the “Indemnitor”) in writing of the claim and cooperate at the Indemnitor’s expense. The Indemnitor will assume sole control of the defense with counsel of its choice, and the Indemnitee may participate at its own expense with its own counsel. The Indemnitor will not settle any claim in a manner that adversely affects the Indemnitee without the Indemnitee’s prior written consent, not to be unreasonably withheld or delayed.

11. Limitation of Liability

11.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER THEY WERE OTHERWISE FORESEEABLE.

11.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO OPENLAYER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

11.3 NOTWITHSTANDING SECTION 11.2, A PARTY’S TOTAL AGGREGATE LIABILITY (INCLUDING ALL ASSOCIATED COSTS, EXPENSES, AND REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATING TO: (I) A BREACH OF SECTION 4 (CONFIDENTIALITY; DATA; PROPRIETARY RIGHTS); (II) INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; OR (III) A BREACH OF OR LIABILITY UNDER THE DATA PROCESSING AGREEMENT (DPA), WILL NOT EXCEED TWO TIMES (2X) THE TOTAL FEES PAID OR PAYABLE TO OPENLAYER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

11.4 The exclusions and limitations in Sections 11.1, 11.2 and 11.3 do not apply to claims or damages arising from: (i) a party’s infringement or misappropriation of the other party’s intellectual property rights; (ii) Customer’s payment obligations; or (iii) a party’s intentional violation of applicable law or from its gross negligence or willful misconduct.

11.5 Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages allocates risk between the parties and is an essential element of the bargain. These limitations apply even if any limited remedy fails of its essential purpose.

12. General

12.1 Changes to Terms. Openlayer reserves the right to change or modify portions of this Agreement at any time. If Openlayer does so, it will post the changes and indicate the date this Agreement was last revised, and will notify Customer through the Services, by email, or by other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or made for legal reasons may become effective immediately. Customer’s continued use of the Services after the changes become effective constitutes acceptance of the modified Agreement.

12.2 Publicity. Openlayer will have the right to use Customer’s name in a factual manner (identifying Customer as a customer of the Services) for marketing or promotional purposes on Openlayer’s website and in other communications with existing or potential Openlayer customers. Customer may opt out of this use at any time by written notice to Openlayer, and Openlayer will cease the use within a reasonable period after receiving the notice.

12.3 Assignment. This Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of such party’s assets or business. Openlayer may use subcontractors and subprocessors in its performance of this Agreement, provided that Openlayer remains responsible for their performance. Any attempted assignment in violation of this Section is void.

12.4 Governing Law; Venue. This Agreement is governed by the laws of the State of California, without regard to its conflict of laws provisions. Subject to Section 12.5, any claim, action, or proceeding permitted to be brought in court will be brought exclusively in the state or federal courts located in California, and each party consents to the exclusive jurisdiction of those courts.

12.5 Dispute Resolution; Arbitration. Except for either party’s right to seek injunctive or other equitable relief in court to prevent imminent harm or to protect its intellectual property rights or Proprietary Information, any dispute, controversy, or claim arising out of or relating to this Agreement, or its breach, termination, or validity, will be resolved by binding arbitration under the U.S. Federal Arbitration Act, administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect, before a single arbitrator seated in San Francisco, California. The arbitrator has sole authority to resolve all disputes arising in relation to this Agreement, including questions of arbitrability, and the award will be final and enforceable in any court of competent jurisdiction, subject only to limited review under the FAA.

12.6 Class-Action Waiver; Jury Waiver. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED BASIS, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT WILL BE JOINED WITH ANY OTHER. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY, EXCEPT AS TO CLAIMS PERMITTED TO BE BROUGHT IN COURT UNDER THIS SECTION.

12.7 Force Majeure. Neither party will be liable for any delay or failure to perform (other than Customer’s payment obligations) to the extent resulting from causes beyond its reasonable control, including acts of God, natural disaster, war, terrorism, civil unrest, epidemic or pandemic, governmental action, labor disputes, and failures or disruptions of utilities, telecommunications, the internet, or Third Party Services.

12.8 Export; U.S. Government Rights. Customer may not remove or export from the United States, or allow the export or re-export of, the Services, Software, or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items,” and as defined in DFARS section 252.227-7014(a)(1) and (5) are deemed “commercial computer software” and “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement.

12.9 Notices. All notices under this Agreement will be in writing and deemed duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after sending, if sent for next-day delivery by a recognized overnight courier; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Customer may also be given by email to the address associated with Customer’s account or by posting on the Services (including via in-app notification, banner, or posting on the account dashboard); notices delivered to Customer through the Services will be deemed given on the day sent or posted. Legal notices to Openlayer must be sent to Unbox Inc. (Openlayer), Attn: Legal, at 650 California St, Floor 6, San Francisco, CA 94108, USA, with a copy to support@openlayer.com.

12.10 Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect. Except to the extent the parties have mutually executed a Separate Signed Agreement covering the same Services, this Agreement (together with the Order Form, Openlayer’s Privacy Policy, and, where applicable, the DPA) is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to its subject matter, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided in this Agreement. In the event of a conflict between this Agreement and a Separate Signed Agreement, the Separate Signed Agreement controls. Any different or additional terms of any purchase order, confirmation, or similar form have no force or effect (except for Order Forms executed by the parties). No agency, partnership, joint venture, or employment relationship is created by this Agreement, and Customer has no authority to bind Openlayer. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

13. Contact

Questions about these Terms or the Services may be directed to Openlayer at support@openlayer.com or through the form at https://openlayer.com/contact.