Yak Services Agreement

By agreeing to this Services Agreement (“Agreement”) with Yak Incorporated (“Yak”) you represent that you have the right to bind your organization (“Customer”) to its terms and conditions. If you do not have such right you should not agree to this Agreement or use the Services.

The sections of this Acceptable Use Policy are hyperlinked below for your convenience:

1. Ordering
2. Rights and Restrictions
3. Compliance
4. Fees
5. Term and Termination
6. Proprietary Rights
7. Confidentiality
8. Warranties, Indemnification, Limitation of Liability
9. Miscellaneous

Customer may order from Yak licenses to access and use Yak’s online service including any add-ons or modules (collectively, the “Services”). The specifics of each Customer order will be set forth on an order form or similar document agreed to by the relevant parties (“Order Form”). Each Order Form constitutes a binding commitment to purchase the items described on such Order Form under this Agreement. All Order Forms are incorporated herein by reference.

1. Scope and Access Rights. Customer may access and use the Services in accordance with and subject to any restrictions set forth in this Agreement and other documents expressly referenced herein. Subject to the terms and conditions of this Agreement, Yak hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to permit its designated users (“Users”) to access and use the Services for Customer’s and its clients’ business purposes; Customer is responsible for ensuring the security and confidentiality of all access credentials and for all liabilities incurred through use of the Services by Users.
2. Restrictions. Except as otherwise permitted hereunder, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services, except to the extent such restriction is not permitted by law; (b) distribute, transfer, sublicense, or otherwise make available the Services (or any portion thereof) to third parties other than Users, or as otherwise provided herein; (c) use the Services in violation of any applicable law, rule or regulation, including any export/import laws, or (d) in any way access, use, or copy any portion of the Services to directly or indirectly develop, promote, distribute, sell or support any competitive product or service.
3. Customer Content. Customer and its clients have sufficient rights to all content and data that Users upload via the Services (“Customer Content”) to permit Yak to perform its obligations hereunder.
4. Usage Data. Yak may collect and use information derived from general use and operation of the Services (“Usage Data”) for its own internal business purposes, and may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer.
5. AI Features. As a feature of the Service, Yak may make artificial intelligence/machine learning tools available within the Service (each an “AI Feature”). Yak will identify each feature that is an AI Feature. If Customer elects to use an AI Feature, Customer acknowledges that the AI Feature may utilize third-party services (“Third Party Services”) and will be subject to such third-party’s terms and conditions which will be identified by Yak prior to enabling use by Customer (collectively “Third Party Terms”). AI Features will not use Customer inputs to train models. In connection with Customer’s use of the AI Feature, Customer acknowledges and agrees that (i) the information and content that Customer inputs into the AI Feature is not considered “Confidential Information,” such input is shared with Third Party Services; (ii) Customer inputs information and content into the AI Features at Customer’s own risk and the AI Features are made available “As-Is”; (iii) Customer acknowledges that output from the AI Features may be inaccurate, non-unique, or similar to output provided to other users and Customer is responsible for independently evaluating and verifying any output, including any suggestions or recommendations, and (iv) neither the input nor the output of the AI Features is considered Customer Content.

1. Acceptable Use. Customer warrants that it and Users shall comply with this Agreement, Yak’s Acceptable Use Policy (found on our website, and incorporated herein by this reference) (the “AUP”), and all applicable laws relating to its use of the Services.
2. Transfers of Personal Information. To the extent that Yak processes personal information in its performance of its obligations under this Agreement, the Data Processing Addendum to the Agreement found on our website (the “DPA”) shall apply. Customer authorizes Yak and its sub-processors to transfer Customer’s Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.

All fees for licenses to the Services (collectively, the “Fees”) will be set forth on the applicable Order Form. Unless otherwise agreed to in writing by the parties, Customer will pay to Yak all Fees within thirty (30) days after the date of the applicable invoice. Customer is responsible for any and all applicable sales, use and other taxes (other than taxes based on Yak’s income). Each party is responsible for its own expenses under this Agreement. Fees are non-refundable.

This Agreement shall continue in effect until terminated as set forth herein. Customer and Users may access and use the Service for a period twelve (12) months after the effective date of the Order Form (“Subscription Term”). Each active engagement remaining open at the end of a Subscription Term shall automatically renew for an additional twelve (12) months and be subject to a renewal charge at Yak’s then-current pricing.. Archived (closed) engagements will not renew automatically. Any archived engagement that is re-opened or rolled over into a new audit period will be treated as a new engagement and subject to a new charge. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party, or (b) by either party if the other party provides proof that it has made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any proceeding under the US Federal Bankruptcy Act or any other foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors. Yak may suspend or terminate Customer’s access to or use of the Services if Customer fails to make any overdue payments within ten (10) days of Yak’s delivery of written notice to Customer of such overdue payments. Any suspension or termination related to the foregoing will not relieve Customer of its payment obligations under this Agreement and any then current Order Forms. Upon any termination of this Agreement or an Order Form (y) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 5, 6, 7, 8(c), 8(d) and 9 shall survive termination, and (z) Customer shall pay to Yak any Fees accrued or outstanding prior to the date of termination. Yak will retain Customer Content for 30 days following termination or expiration of this Agreement or an Order Form. Upon request Yak may permit Customer to have read-only access to download a copy of the Customer Content. After such 30-day period all Customer Content will be permanently marked for deletion and can no longer be accessed by Customer.

As between the parties, Yak or its partners will retain all ownership rights in and to the Services, all updates and/or upgrades thereto, and all other derivative works of the Services that are provided by Yak or its partners, including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, and all intellectual property rights incorporated into or related to the foregoing. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Content.

“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.

1. Warranties. Yak warrants that (i) the Services, as made available, will be free of material defects, and (ii) Yak will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the foregoing warranty, Yak shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Services to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. Yak will not be liable to the extent that any breach of the foregoing warranties is caused by (1) third-party components (including in combination with the Services) not provided by Yak including Customer Content; (2) unauthorized use of the Services or (3) Viruses introduced by Customer or its agents (collectively, “Exclusions”).
2. Indemnification. Yak will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Services or Deliverables infringe or misappropriate any copyright or trade secret rights, and Yak will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Yak promptly in writing of such action, Customer giving Yak sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Yak’s reasonable request and expense, assisting in such defense. If the Services (or any component thereof) or a Deliverable becomes, or in Yak’s opinion is likely to become, the subject of an infringement claim, Yak may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Services or Deliverable so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Yak’s reasonable opinion, commercially reasonable, Yak may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Yak will have no obligation under this Section 8(b) or otherwise with respect to any infringement claim based upon any Exclusions. This Section 8(b) states Yak’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
3. Disclaimer. THE EXPRESS WARRANTIES IN SECTION 8(a) ARE THE EXCLUSIVE WARRANTIES OFFERED BY YAK AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED.
4. Limitations. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, BOTH PARTIES’ AGGREGATE CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SERVICES, PROFESSIONAL SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.

Except with respect to Customer’s payment obligations, each party will be excused from any delay or failure in performance hereunder solely to the extent it could not perform due to any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Except as otherwise set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Kent County, Delaware. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals or other documents submitted by the parties. The terms on any purchase order or similar document submitted by Customer to Yak will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the applicable Order Form.