Terms of Service

1.1. Access and Use. Subject to these Terms and to the terms of any executed order form, statement of work, or similar agreement between Visark and Customer (each an “Order Form”), Visark grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services for Customer's internal business purposes during the term set out in the applicable Order Form.

1.2. Order Forms. Specific pricing, subscription terms, included usage limits, and any service-specific commitments are set out in the applicable Order Form. In the event of a conflict between these Terms and an Order Form, the Order Form controls with respect to the subject matter addressed.

1.3. Documentation. Visark may provide documentation describing the features, functionality, and proper use of the Services (“Documentation”). Customer agrees to use the Services in accordance with the Documentation.

1.4. Updates. Visark may modify, enhance, or update the Services from time to time. We will use reasonable efforts to provide notice of material changes that affect Customer's use of the Services.

1.5. Third-Party Services. The Services may interoperate with third-party services, products, or content (“Third-Party Services”). Visark is not responsible for Third-Party Services. Customer is responsible for maintaining any Third-Party Services it uses with the Services and for complying with the third-party provider's terms.

1.6. Pilot, Evaluation, and Beta Services. Visark may make Services available on a pilot, evaluation, alpha, or beta basis. Such services are provided AS IS, without any representations, warranties, performance commitments, data security guarantees, or support obligations beyond what is expressly set out in a signed pilot or evaluation agreement.

2.1. Restrictions. Customer will not, and will not authorize any third party to:

• Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or underlying algorithms of the Services (except to the extent expressly permitted by applicable law)
• Modify, translate, or create derivative works based on the Services
• Use the Services to build or train a competing product or service
• Sell, resell, rent, lease, sublicense, or transfer the Services to any third party
• Remove, alter, or obscure any proprietary notices on the Services
• Interfere with or disrupt the integrity or performance of the Services, including circumventing any access or use restrictions
• Use the Services in any manner that infringes, misappropriates, or violates third-party rights
• Use the Services to transmit content that is unlawful, harmful, defamatory, infringing, or otherwise objectionable
• Use the Services to develop, train, or improve any AI model, except as expressly permitted under an applicable agreement with Visark

2.2. Customer Responsibilities. Customer is responsible for:

• Maintaining the security of its account, credentials, and devices used to access the Services
• All activity occurring under Customer's account
• Obtaining and maintaining any consents, permissions, or licenses required for Customer's use of the Services, including any consents required from Customer's customers, employees, or end users whose data is processed through the Services
• Ensuring that Customer's use of the Services complies with all applicable laws

2.3. Authorized Users. Customer may permit its employees, contractors, and agents authorized by Customer (“Authorized Users”) to use the Services in accordance with these Terms and the applicable Order Form. Customer is responsible for the acts and omissions of its Authorized Users as if they were Customer's own.

2.4. Suspension. Visark may suspend Customer's access to the Services if (a) required by law, (b) Visark reasonably believes Customer's use of the Services violates these Terms or poses a credible security risk to the Services or to third parties, or (c) Customer fails to pay undisputed Fees when due and remains in breach 10 days after written notice. Visark will use reasonable efforts to give Customer notice before suspending access and to restore access promptly once the issue is resolved.

3.1. Customer Data. “Customer Data” means all data and information that Customer or Customer's Authorized Users submit to, or that is generated by Customer's use of, the Services, including data accessed through connected tools. As between Visark and Customer, Customer retains all right, title, and interest in and to Customer Data.

3.2. Limited License to Customer Data. Customer grants Visark a limited, non-exclusive, worldwide, royalty-free license to access, use, process, copy, distribute, and display Customer Data solely as necessary to provide the Services to Customer.

3.3. AI and Machine Learning. Customer Data will not be used to train, fine-tune, or otherwise improve any generic AI model used by Visark or by any third party. AI-generated outputs produced for Customer using Customer Data are part of Customer Data. Customer is responsible for evaluating the accuracy, completeness, and suitability of AI-generated outputs before relying on them or acting on them.

3.4. Aggregated and Anonymized Data. Visark may collect and use anonymized, aggregated, or de-identified data about the use of the Services for analytics, product improvement, benchmarking, and other internal business purposes, provided that such data does not identify Customer, any Authorized User, or any natural person.

3.5. Feedback. If Customer or any Authorized User provides feedback, suggestions, or ideas to Visark about the Services (“Feedback”), Customer grants Visark a perpetual, irrevocable, worldwide, royalty-free license to use the Feedback for any purpose, including improving the Services. Feedback is provided AS IS.

3.6. Visark Intellectual Property. Visark and its licensors own all right, title, and interest in and to the Services, the Documentation, all underlying technology, and all improvements, modifications, and derivative works. No rights are granted to Customer except as expressly set out in these Terms.

4.1. Confidential Information. Each party may disclose information to the other that is identified as confidential or that should reasonably be understood to be confidential (“Confidential Information”). Confidential Information of Visark includes the Services, Documentation, pricing, and any non-public business or technical information. Confidential Information of Customer includes Customer Data.

4.2. Obligations. The receiving party will (a) use reasonable measures to protect the disclosing party's Confidential Information, (b) use Confidential Information only as necessary to perform under these Terms, and (c) not disclose Confidential Information to third parties except to its employees, contractors, and agents who need to know and who are bound by confidentiality obligations at least as protective as these.

4.3. Exceptions. Confidential Information does not include information that is publicly available through no fault of the receiving party, was rightfully known by the receiving party before disclosure, was rightfully received from a third party without restriction, or was independently developed by the receiving party without reference to the disclosing party's Confidential Information.

5.1. Fees. Customer will pay the fees set out in the applicable Order Form (“Fees”). All Fees are non-refundable except as expressly set out in these Terms or an Order Form.

5.2. Payment Terms. Unless otherwise specified in the Order Form, Fees are due within 30 days of invoice. Overdue undisputed amounts accrue interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is lower.

5.3. Taxes. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer is responsible for paying all such taxes, except those based on Visark's net income.

5.4. Disputed Fees. If Customer believes Visark has billed Customer incorrectly, Customer must notify Visark in writing within 30 days of the invoice date. Disputed amounts that are determined to be valid will be credited or refunded.

6.1. Term. These Terms take effect when Customer first accesses the Services and continue until terminated as set out below.

6.2. Termination for Convenience. If no Order Form is in effect, either party may terminate these Terms for convenience on 30 days' written notice.

6.3. Termination for Cause. Either party may terminate these Terms or any Order Form if the other party (a) materially breaches the agreement and fails to cure within 30 days of written notice, or (b) becomes the subject of insolvency, bankruptcy, or similar proceedings.

6.4. Effect of Termination. Upon termination:

• Customer's right to access and use the Services ceases
• Customer will pay any Fees accrued through the effective date of termination
• Within 30 days of termination, Visark will delete Customer Data from its systems, except for audit log records retained for 12 months for compliance purposes and information Visark is required to retain by applicable law
• Customer may request a copy of Customer Data prior to deletion by emailing legal@visark.ai

6.5. Survival. The following provisions survive termination: Section 3 (Customer Data and Intellectual Property), Section 4 (Confidentiality), Section 5 (Fees and Payment, for amounts accrued), Section 6.4 (Effect of Termination), Section 7 (Warranties and Disclaimers), Section 8 (Limitation of Liability), Section 9 (Indemnification), and Section 10 (Miscellaneous).

7.1. Mutual Warranties. Each party represents and warrants that it has the authority to enter into these Terms.

7.2. Visark Warranty. During the term of any Order Form, Visark warrants that the Services will materially conform to the Documentation. Customer's sole remedy and Visark's sole obligation for a breach of this warranty is for Visark, at its option, to (a) correct the non-conformity, (b) provide a workaround, or (c) if neither is commercially reasonable, terminate the Order Form and refund any prepaid, unused Fees.

7.3. Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND VISARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. VISARK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT AI-GENERATED OUTPUTS WILL BE ACCURATE OR COMPLETE. CUSTOMER IS RESPONSIBLE FOR EVALUATING AI-GENERATED OUTPUTS BEFORE RELYING ON THEM.

8.1. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS, ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO VISARK IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8.3. Exclusions from Cap. The limitations in Section 8.2 do not apply to (a) Customer's payment obligations, (b) either party's indemnification obligations under Section 9, or (c) liability that cannot be limited under applicable law.

9.1. Visark Indemnification. Visark will defend Customer against any third-party claim alleging that the Services, as used in accordance with these Terms, infringe a valid patent, copyright, or trademark, or misappropriate a trade secret, and will pay damages and costs awarded against Customer in any such claim or agreed to in settlement. This obligation does not apply to claims arising from (a) Customer's use of the Services in violation of these Terms or the Documentation, (b) Customer Data, (c) modifications to the Services not made by Visark, or (d) combinations of the Services with third-party products or services not authorized by Visark.

9.2. Customer Indemnification. Customer will defend Visark against any third-party claim arising out of (a) Customer Data, (b) Customer's violation of these Terms, or (c) Customer's use of the Services in violation of applicable law, and will pay damages and costs awarded against Visark in any such claim or agreed to in settlement.

9.3. Procedures. The indemnified party will promptly notify the indemnifying party of any claim, cooperate in the defense, and allow the indemnifying party to control the defense and settlement, provided that no settlement may impose any obligation on the indemnified party without its prior written consent.

10.1. Governing Law. These Terms are governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles.

10.2. Jurisdiction. All disputes arising out of or related to these Terms will be brought exclusively in the state or federal courts located in New Castle County, Delaware. Each party consents to the personal jurisdiction of those courts.

10.3. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS.

10.4. Force Majeure. Neither party is liable for any failure or delay in performance (other than payment obligations) caused by events beyond its reasonable control, including acts of God, war, terrorism, civil unrest, government action, pandemic, labor disputes, internet or telecommunications failures, or other unforeseen events.

10.5. Assignment. Neither party may assign these Terms without the other party's prior written consent, except that either party may assign these Terms in connection with a merger, acquisition, or sale of all or substantially all of its assets, on written notice to the other party.

10.6. Notices. Notices to Visark must be sent to legal@visark.ai. Notices to Customer will be sent to the email address Customer provides to Visark for billing or notice purposes.

10.7. Entire Agreement. These Terms, together with any Order Forms and other documents expressly incorporated by reference, constitute the entire agreement between the parties regarding the Services and supersede all prior agreements and communications on this subject.

10.8. Modifications. Visark may update these Terms from time to time. Material changes will be communicated by updating the “Last updated” date and, where required by applicable law, by providing additional notice. Continued use of the Services after the effective date of an update constitutes acceptance of the updated Terms.

10.9. Severability. If any provision of these Terms is held to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions will remain in full force and effect.

10.10. No Waiver. A failure by either party to enforce any right under these Terms does not constitute a waiver of that right or any other right.

10.11. Independent Contractors. The parties are independent contractors. Nothing in these Terms creates an agency, partnership, joint venture, or employment relationship.

10.12. Export Compliance. Customer represents that it will comply with all applicable export and sanctions laws. Customer may not access or use the Services from any country subject to U.S. or other applicable embargoes, or while listed on any restricted-party list.

If you have questions about these Terms, contact us at:

Visark, Inc.

Email: legal@visark.ai