These Passio AI Tools License Terms (these "Terms") are entered into by and between Passio Inc. ("Passio") and the individual or entity agreeing to these terms ("Licensee"). By clicking the "Agree" button or by downloading, installing, copying, or otherwise using the Passio’s SaaS products, AI tools, APIs, SDKs and modules, including but not limited to Nutrition-AI and Remodel-AI software development kits (the “SDK”) and software solutions created using Passio’s Mobile AI Studio (collectively the "Passio AI Tools"), Licensee agrees to be bound by these Terms. If Licensee does not agree to these Terms, Licensee should not proceed with the download, installation or use of the Passio AI Tools. If Licensee is an individual downloading the Passio AI Tools on behalf of an entity or organization, Licensee represents and warrants that it has the requisite authority to bind that entity to these Terms.
Last Updated: October 20, 2023
PASSIO AI TOOLS AND DOCUMENTATION LICENSE GRANT
Subject to Licensee’s compliance with these Terms, Passio hereby grants Licensee a non-exclusive, non-transferable, revocable license to use the Passio AI Tools and accompanying Documentation (as defined below), as made available at https://passio.ai, https://accounts.passiolife.com, https://platform.passiolife.com and Passio’s other online properties, solely for the purpose of developing, testing, and publishing software applications targeting end-users ("Applications") that integrate with, interact with, or otherwise utilize the provided functionality of the Passio AI Tools and/or leverage Passio’s AI technology. This license does not grant Licensee the right to distribute the Passio AI Tools or any part thereof to third parties, except as expressly stated otherwise herein. For the avoidance of doubt, Licensee may under no circumstances redistribute the Passio AI Tools itself outside of any Applications. Nothing herein shall be construed as a grant of a license or any other rights with respect to Passio’s trademarks, logos, or other branding for the Passio AI Tools or any other Passio offerings (collectively the “Marks”). Licensee shall seek prior written consent for use of requested use of Marks in connection with its use of the Passio AI Tools, and agrees and acknowledges Passio is under no obligations to grant any such requests.
PASSIO AI TOOLS RESTRICTIONS AND USAGE
Licensee shall not: (a) modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Passio AI Tools or any part thereof; (b) remove, alter, or obscure any proprietary notices, labels, or marks from the Passio AI Tools; (c) use the Passio AI Tools in any manner that violates any applicable laws, regulations, third-party rights, or other Passio terms or agreements by which Licensee is bound; or (d) use the Passio AI Tools to build an API or any product that is competitive with any Passio technology. Licensee acknowledges and understands that its use of the Passio AI Tools may be subject to collection of certain telemetry, usage, and other data which captures Licensee’s interactions with and use of the Passio AI Tools (collectively the “Usage Data”). As between the parties, Licensee acknowledges that Passio owns all right, title, and interest in and to the Usage Data and may use or exploit it for any purpose it deems fit, including but not limited to for the purposes of improving the Passio AI Tools. Any collection, storage, or use of Licensee personal information is governed by Passio’s Privacy Policy which Licensee hereby acknowledges upon acceptance of these Terms.
INTELLECTUAL PROPERTY OWNERSHIP; LICENSEE DATA
Passio and its applicable licensors retain all right, title, and interest in and to the Passio AI Tools and Documentation, including all intellectual property rights therein. The Passio AI Tools are protected by patents, including but not limited to patents US 11,942,208B2, US 2016/0063692 A1, US 8,439,683 B2, and US 8,345,930 B2, among other intellectual property rights. Licensee acknowledges and agrees that other than as explicitly stated herein, nothing in these Terms grants it any rights to or ownership interest in the Passio AI Tools or Documentation. If Licensee provides any feedback or suggestions for changes, modifications or improvements to the Passio AI Tools (“Feedback”), Licensee agrees that Passio will have an unrestricted right to use such Feedback for its business purposes. For purposes of this Agreement, “Licensee Data” shall mean any data, images, videos, information or materials provided by Licensee to Passio during the Term of this Agreement. Licensee, not Passio, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee Data. Licensee is solely responsible for all Licensee Data. Passio shall not be liable to Licensee or any other third party for unauthorized access to Licensee Data unless due to Passio’s gross negligence or willful misconduct. If applicable, Passio shall use commercially reasonable efforts to maintain compliance with industry standard security precautions with respect to Licensee Data. Licensee is responsible for the use of the Passio AI Tools by any person to whom Licensee has given access to and/or use of the Passio AI Tools. Subject to Passio’s compliance with the terms hereof, Licensee hereby grants Passio a perpetual, limited, non-exclusive, non-transferable, fully-paid, worldwide right and license to use Licensee Data solely for purposes of improving, testing, and/or operating the Passio AI Tools and related Passio technology. Licensee acknowledges that it is Licensee’s responsibility to make sure that no personally identifiable information is provided by Licensee to or otherwise sent to Passio.
SUPPORT AND UPDATES
Passio is not obligated to provide any support, patches, fixes or updates for the Passio AI Tools. However, Passio may, at its sole discretion, provide updates, patches, fixes or support at any time.
FEES AND TAXES
The Passio AI Tools may be provided for a fee or other charge. Licensee shall pay Passio the fees (“Fees”) identified in the Order without offset or deduction at the cadence identified in the Order (e.g., monthly or annually). Fees paid by Licensee are non-refundable. Licensee shall make all payments hereunder in US dollars by ACH or credit or debit card payment via the link provided in the applicable invoice to such account as Passio may specify in writing from time to time, or by another mutually agreed-upon payment method. If Licensee pays online via credit or debit card, Licensee agrees to be bound by the Stripe, Inc. Services Agreement available at https://stripe.com/us/legal. If Licensee fails to make any payment when due, and Licensee has not notified Passio in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Passio’s other rights and remedies: (i) Passio may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Licensee shall reimburse Passio for all reasonable costs incurred by Passio in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Passio may suspend Licensee’s and its Authorized Users’ access to all or any part of the Passio AI Tools until such amounts are paid in full. All Fees and other amounts payable by Licensee under these Terms are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority.
WARRANTY DISCLAIMER
THE PASSIO AI TOOLS IS PROVIDED "AS IS" AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, PASSIO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES AND AGREES THAT THE USE OF THE PASSIO AI TOOLS IS AT THEIR OWN RISK, AND PASSIO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, RELIABILITY, OR COMPLETENESS OF THE PASSIO AI TOOLS, OR INFORMATION OBTAINED THROUGH THE PASSIO AI TOOLS. PASSIO DOES NOT WARRANT OR GUARANTEE THAT THE PASSIO AI TOOLS WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS FOR ITS APPLICATIONS OR GENERALLY, OR THAT ANY ERRORS OR DEFECTS IN THE PASSIO AI TOOLS WILL BE CORRECTED. FURTHERMORE, PASSIO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PASSIO AI TOOLS OR THE SUITABILITY OF THE PASSIO AI TOOLS FOR ANY PARTICULAR PURPOSE. PASSIO MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE PASSIO AI TOOLS WILL BE COMPATIBLE WITH LICENSEE'S SYSTEMS, SOFTWARE, OR APPLICATIONS, OR THAT THE PASSIO AI TOOLS WILL BE SECURE FROM UNAUTHORIZED ACCESS, HACKING, OR OTHER POTENTIAL SECURITY THREATS. PASSIO DISCLAIMS ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PASSIO AI TOOLS. LICENSEE ASSUMES ALL RISKS AND RESPONSIBILITIES FOR USING THE PASSIO AI TOOLS TO ACHIEVE THEIR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE PASSIO AI TOOLS. ADDITIONALLY, VERSIONS OF THE PASSIO AI TOOLS IDENTIFIED AS ‘PREVIEW VERSIONS’ MAY HAVE ADDITIONAL BUGS OR DESIGN FLAWS. PASSIO MAKES NO WARRANTIES ABOUT THE PREVIEW VERSIONS WHATSOEVER. LICENSEE’S USE OF THE PASSIO AI TOOLS IS AT ITS OWN RISK.
INDEMNIFICATION
Licensee shall defend, indemnify and hold harmless Passio, its affiliates and their respective officers, directors, employees, agents and representatives from any and all third party claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from: (i) its material breach of these Terms; or (ii) an allegation that any Application violates, misappropriates, or infringes any third party intellectual, contractual or proprietary right.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PASSIO BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (I) LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR (II) ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES OR PROFITS; (III) ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (IV) ANY AMOUNT IN THE AGGREGATE OVER $100. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU, AND PASSIO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TERMINATION
These Terms shall commence on the date accepted by Licensee, and shall expire at the end of the term specified on during the online ordering process. In the event of a material breach of these Terms by the either party, the non-breaching party may terminate these Terms by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within ten (10) business days of receipt of such notice. For clarity, after the termination of the agreement Licensee will not be responsible for any future payments.
MISCELLANEOUS
These Terms constitute the entire agreement between the parties regarding the subject matter of these Terms, and supersede all prior or contemporaneous negotiations, understandings, or agreements, whether oral or written, regarding the same. These Terms shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law provisions thereof. Any disputes arising out of or related to these Terms shall be resolved exclusively by a court of general jurisdiction in San Francisco, California. Licensee hereby expressly agrees to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to these Terms or access to or use of the Passio AI Tools. These Terms may not be assigned by Licensee without the prior written consent of Passio. Any dispute arising from or relating to the subject matter of these Terms that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other, must be finally settled by arbitration in San Francisco, California using the English language in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (formerly operating as, Judicial Arbitration and Mediation Services, Inc.) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator(s) will have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party will have the right to seek equitable relief from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in San Francisco County. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect. The parties are independent contractors. These terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties. Licensee shall comply with, and shall, at Passio’s request, demonstrate compliance with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee shall not export or re-export, or allow the export or re-export of any product, technology or information it obtains pursuant to these Terms (including but not limited to the Passio AI Tools) in violation of any such laws, embargoes, restrictions or regulations. Licensee shall obtain and bear all expenses relating to any licenses and/or exemptions required to comply with foregoing. Passio may use Licensee’s company name and logo on Passio’s website, and, the parties may work together to develop a public case study, with final content subject to Licensee’s review and final approval (not to be unreasonably withheld). Licensee shall upon request provide an approved quote about its selection and/or use of the Passio AI Tools, for publication in a blog, press release or other online posting.
