1. AGREEMENT TO TERMS AND CONDITIONS

These Terms is effective, and you agree to be bound by these Terms, the earlier of the date (i) you first access or use the Services; or (ii) of the Order Form Date specified on the applicable Order Form incorporating these Terms (“Effective Date”). If you are accepting these Terms on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of these Terms.

2. PRIVACY NOTICE

Please review Ichi Plan’s Privacy Notice, available at www.ichiplan.com/privacy which also governs how Ichi Plan collects, uses and shares Customer’s and Authorized Users’ (as defined below) information.

3. ACCESS AND USE

1. Services

Subject to the terms and conditions of these Terms, Ichi Plan hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(b)) right to use (and permit Authorized Users to and use) the Services in accordance with the documentation and the terms of these Terms. As used herein, “Authorized Users” means employees, consultants, contractors, or agents authorized by Customer to use the Services, including without limitation any third party who Customer enables to use the Services on behalf of Customer in connection with such third party’s interactions or dealings with Customer.

B. Use Restrictions

Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Services or the documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iii) except as enabled via the functionality of the Services, frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Services to any other person or entity, or otherwise allow any person or entity to use the Services for any purpose other than for the benefit of Customer in accordance with these Terms; (iv) use the Services or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law; (v) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; or (vi) access or search the 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 Services features provided by Ichi Plan for use expressly for such purposes.

C. Authorized Users

Customer may permit Authorized Users to use the Services in accordance with the documentation and these Terms, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Services and their compliance with these Terms, including, without limitation, with the restrictions set forth in Section 3(b). Customer will, and will require all Authorized Users that Customer provides direct access the Services to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Ichi Plan if Customer knows or reasonably suspects that any user name and/or password has been compromised.

D. Ownership of Ichi Plan IP 

Subject to the limited rights expressly granted hereunder, Ichi Plan reserves and, as between the Parties will solely own, all right, title, and interest in and to the Ichi Plan IP. As used herein, “Ichi Plan IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, the documentation, all Aggregate Data (as defined below), and 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. “Intellectual Property Rights” means all patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, 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. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

E. Feedback

From time to time Customer or its employees, contractors, representatives may provide Ichi Plan with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Ichi Plan a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Ichi Plan’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services. For clarity, Feedback is not considered Confidential Information (as defined below).

F. Third-Party Services

Certain features and functionalities within the Services may integrate and depend on, or may allow Customer and its Authorized Users to interface or interact with, access and/or use, third-party services, products, technology and content (collectively, “Third-Party Services”). Ichi Plan does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.

4. PAYMENT AND FEES

In payment for Customer’s access to the Services during the Term, Customer shall pay Ichi Plan the non-refundable fees set forth on the applicable Order Form (the “Fees”). Except as otherwise provided in the applicable Order Form, Ichi Plan will issue invoices to Customer, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Ichi Plan will charge Customer’s selected payment method (such as a credit card) for any Fees on the applicable payment date, including any applicable taxes.  If Ichi Plan cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Ichi Plan will attempt to charge the payment method again as Customer may update its payment method information. If Customer fails to make any payment when due, Ichi Plan may suspend Services until all payments are made in full. 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 Ichi Plan hereunder, other than any taxes imposed on Ichi Plan’s income.

1. Materials
   
   

   1. Customer Materials. Customer hereby grants Ichi Plan a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Services and for the purpose of creating or developing Aggregate Data. For clarity, the rights set forth in this Section 5 include the right for Ichi Plan to disclose and provide the Customer Materials to Ichi Plan’s third party service providers in connection with the provision of the Services to Customer. As between Customer and Ichi Plan, Customer owns and retains all right, title and interest in and to all Customer Materials. “Customer Materials” means all information, data, content, and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Ichi Plan in connection with Customer’s use of the Services (including without limitation any materials submitted by Customer’s Authorized User(s)), but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Ichi Plan and made available through or in connection with the Services. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials, (ii) any Generated Materials; or (iii) Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any general characteristics, usage data, and/or trends with respect to the Services.

   2. Generated Materials. The Services utilize generative artificial intelligence to generate materials provided to Customer by the Services that are based on the Customer Materials as set forth herein (collectively, “Generated Materials”). Ichi Plan does not claim any ownership interest in the Generated Materials. Customer acknowledges and agrees that: (a) the Generated Materials may be subject to limited, or no, copyright protection and (b) the Generated Materials may not be unique.  Accordingly, on behalf of Customer and Customer’s successors and assigns, Customer irrevocably covenants not to assert or bring any suit, claim, demand or challenge against Ichi Plan, or Ichi Plan’s licensors or licensees, in connection with their or our use of such same or similar output.

5. CONFIDENTIAL INFORMATION

1. Mutual Representations

Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into these Terms; and (ii) the execution, delivery and performance of these Terms by it have been duly authorized by all necessary actions and do not violate its organizational documents.

B. Customer Additional Representations

Customer represents and warrants that Ichi Plan’s use of the Customer Materials in accordance with these Terms will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party.

C. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ANY GENERATED MATERIALS ARE PROVIDED “AS IS.” ICHI PLAN MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES OR GENERATED MATERIALS. TO THE MAXIMUM EXTENT LAW PERMITS, ICHI PLAN HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ICHI PLAN HEREBY DISCLAIMS ANY WARRANTY THAT (1) USE OF THE SERVICES OR GENERATED MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, AND (2) ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY.

D.

THE SERVICES UTILIZE GENERATIVE ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TECHNOLOGIES TO CREATE THE GENERATED MATERIALS. ACCORDINGLY, CUSTOMER ACKNOWLEDGES THAT THE GENERATED MATERIALS MAY NOT BE PROTECTABLE UNDER APPLICABLE INTELLECTUAL PROPERTY LAWS. IN ADDITION, WHILE ICHI PLAN TAKES SUBSTANTIAL EFFORTS TO ENSURE THE GENERATED MATERIALS AND ANY OTHER INFORMATION AVAILABLE ON OR THROUGH THE SERVICES IS ACCURATE AND COMPLETE, ICHI PLAN DOES NOT MAKE ANY WARRANTIES OR GUARANTEES REGARDING THE GENERATED MATERIALS, INCLUDING ANY GUARANTEE OF A PARTICULAR OUTCOME FROM USING THE SERVICES OR GENERATED MATERIALS. CUSTOMER AND ITS AUTHORIZED USERS SHOULD EXERCISE DUE DILIGENCE AND CARE WHEN RELYING ON THE SERVICES AND GENERATED MATERIALS, AS ANY SUCH USE WILL BE CUSTOMER’S SOLE AND EXCLUSIVE RESPONSIBILITY AND RISK AND ICHI PLAN IS NOT LIABLE FOR ANY LOSS OR DAMAGES INCURRED BY CUSTOMER.

6. TERM AND TERMINATION

1. Term

These Terms shall commence on the Effective Date and will remain in effect as specified on the applicable Order Form, or if no Order Form is in place, until terminated as set forth herein (the “Term”). 

B. Termination

Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Further, if there is no Order Form in place between the Parties, then either Party may terminate these Terms for convenience at any time by giving the other Party written notice of such termination.

C. Survival

This Section 9(c) and Sections 3(b), 3(c), 3(e), 6, 8, 9(d), 10, 11 and 12 survive any termination or expiration of these Terms.

D. Effect of Termination 

Upon expiration or termination of these Terms the rights granted pursuant to Section 3(a) will terminate, and Customer will promptly cease all use of the Services.  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.

7. LIMITATION OF LIABILITY

1. Limitation of Liability

EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

B. Total Liability

IN NO EVENT WILL ICHI PLAN’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ICHI PLAN IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY ICHI PLAN TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ICHI PLAN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

8. INDEMNIFICATION

1. Indemnification by Ichi Plan

Subject to Section 11(b), Ichi Plan will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s use of the 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 Ichi Plan (including reasonable attorneys’ fees) resulting from such Claim.

B. Exclusions

Ichi Plan’s obligations under Section 11(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of these Terms, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Ichi Plan; (iv) modifications to the Services by anyone other than Ichi Plan; or (v) combinations of the Services with software, data or materials not provided by Ichi Plan.

C. Indemnification by Customer

Customer will defend, indemnify and hold harmless Ichi Plan from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Ichi Plan, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Ichi Plan that: (i) the Customer Materials or its use by Ichi Plan in accordance with these Terms infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Services or documentation to the extent such use was not in accordance with these Terms; (iii) is based on the manufacture, sale, distribution or marketing of any Customer’s products or services; or (iv) is based on a breach of Section 3(b) by Customer.

9. GENERAL

1. Entire Agreement

These Terms, including its exhibits, 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. These Terms may be amended or modified only by a written document executed by duly authorized representatives of the parties provided that if Customer does not have an active Order Form with Ichi Plan, then Ichi Plan may amend or modify these Terms by (i) posting a new version of these Terms on the Services, or (ii) providing notice to Customer via email or other reasonable means.

B. Assignment

Neither Party may assign or transfer these Terms, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer these Terms without such consent will be void.  Notwithstanding the foregoing, Ichi Plan may assign or transfer these Terms to a third party that succeeds to all or substantially all of Ichi Plan’s business and assets relating to the subject matter of these Terms, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, these Terms is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

C. Notices

All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by United States Postal Service Priority Express Mail, with delivery confirmation, postage prepaid, or sent by email, and if 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. The address for notices will be as set forth on the Order Form, provided that if there is no Order Form in effect between the parties, then (1) notices for Customer will be delivered to: Customer’s provided email contract address, and (2) notices for Ichi Plan will be delivered to: connect@ichiplan.com.

D. Relationship of the Parties

Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.

E. Waiver

Either Party’s failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the Party granting the waiver.

F. Severability

If any provision of these Terms 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 these Terms will remain in full force and effect.

G. Export Regulation

Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.

H. Governing Law; Jurisdiction

This Terms 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.  Any legal action or proceeding arising under these Terms 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.

I. U.S. Government End Users

The Services were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Services.