END-USER LICENSE AGREEMENT (“EULA”)
OneCup AI Platform
Last Updated: November 8, 2022
This EULA is a legal contract between you (whether a single individual or entity, “You”, “you”, “Your” or “your”) and One Cup Productions Ltd. (“We”, “we”, “Us”, “us”, “Our” or “our”). It is applicable to your use and access of our OneCup AI Platform, including our proprietary BETSY software, user interface software, and other software included in the One Cup AI Platform (the “Software”), and our proprietary firmware included in our cameras and other hardware provided in connection with the One Cup AI Platform (collectively, the “Platform”).
READ THIS LEGAL CONTRACT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR MAKING ANY USE OF THE PLATFORM OR THE SOFTWARE. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE PLATFORM OR THE SOFTWARE. THE PLATFORM AND SOFTWARE ARE NOT INTENDED FOR OR DIRECTED TO CHILDREN UNDER THE AGE OF 18. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, IF YOU ARE UNDER THE AGE OF 18, OR IF YOU DO NOT HAVE THE AUTHORITY TO AGREE TO ANYTHING IN THIS EULA ON BEHALF OF YOUR ORGANIZATION, DO NOT DOWNLOAD, INSTALL OR MAKE ANY USE OF THE PLATFORM OR SOFTWARE.
We may, at any time, modify this EULA. If we modify this EULA, we will post our modified EULA at www.onecup.ai/terms-and-conditions and the modified EULA will supersede any prior EULA from the date that the modified EULA is posted. By continuing to use the Platform or the Software after the date that the modified EULA is posted, you agree that you accept all of our modifications to the EULA and agree to abide by the modified terms of the EULA. If you do not agree to the modified EULA, you must stop using the Platform and the Software.
The Software and Platform are protected by intellectual property laws. The Software and Platform are licensed to you pursuant to the terms of this EULA, and are not sold. All rights not expressly granted herein are reserved.
1. GRANT OF LICENSE
1.1 License. We hereby grant to you (whether a single individual or entity) a revocable, non-exclusive, non-transferable license (the “License”) to download, install, access, and use the Platform, and the Software included in the Platform, subject to the terms and conditions of this EULA including the restrictions set forth in Section 2 below. Where the Platform and Software or elements of the Platform and Software are made available as “software as a service” (SaaS), the License comprises the rights to access and use the Platform, and the Software included in the Platform, solely for your internal business purposes in accordance with all applicable documentation and this EULA, and subject to the terms of your order placed with us for delivery of the Platform and Service (an “Order”). Where the Platform and Software or elements of the Platform and Software are made available as local copies, the License comprises the rights to download, install, and use a copy of the Software and Platform, on approved computer devices or systems, namely a mobile device, tablet device, or other computer system (the "Device"), running a version of the mobile device or tablet operating system, computer operating system or browser software (in the case of a web-based PC or browser version of the Software or Platform), or other operating system or browser software identified by us as the minimum version required for the Platform or Software. Unless otherwise specified in this EULA or in an applicable Order, where the Platform and Software or elements of the Platform and Software are made available as local copies, each copy of the Software that you are permitted may be loaded onto no more than one Device.
1.2 License Fee. If we identify a license fee or other payment in a separate written Order or a separate written agreement between you and us (or between us and the organization or entity through which you gain access and license to the Platform and/or Software), the License shall be of no force or effect unless the applicable license fee or other payment is paid in accordance with the applicable payment provisions.
1.3 Reservation. Except for the License granted in this Section 1, nothing in this EULA shall be construed as conferring any licenses or other rights under the intellectual property or other proprietary rights of us and our licensors, affiliates or any third party, in the Platform or the Software. In addition, we and our licensors reserve the right to disable the Platform and/or the Software, or elements of the Platform and/or the Software, at our sole discretion.
2. RESTRICTIONS ON USE
2.1 Restrictions. You shall not:
(a) use the Software or the Platform to post or transmit any material which:
a. violates or infringes in any way upon the rights of others,
b. is unlawful, threatening, abusive, defamatory, hurtful, invasive of privacy or publicity rights, vulgar, obscene, hateful, profane or otherwise objectionable, or
c. contains or links to software viruses or any other computer code, files or programs designed to (or that operates to) interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or otherwise interfere with or disrupt the Software or the Platform;
(b) use the Software or Platform in any manner to violate any person’s legal rights, to violate any intellectual property rights of us, our licensors and affiliates, or any third party, to upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
(c) use the Software or Platform in any manner to perpetrate any fraud, to publish or distribute any obscene or defamatory material, to publish or distribute any material that incites violence, hate, or discrimination towards any group, or to unlawfully gather information about others;
(d) modify, translate, use, reproduce, copy, or transfer the right to use the Software or Platform, except to the extent expressly permitted in this EULA;
(e) commercially exploit, reproduce, copy, modify, translate, or otherwise change the Software or Platform;
(f) rent, lease, license, transfer or otherwise provide any third party with access to the Software or Platform;
(g) distribute or provide subscriptions to the Software or Platform;
(h) where the Platform and Software or elements of the Platform and Software are made available as local copies, unless otherwise specified in this EULA or in an applicable Order, load the Software or Platform onto any more than one (1) Device;
(i) remove, cover, or alter any trademark, trade name, copyright, or other proprietary notices, labels, or marks appearing on or in the Software or Platform;
(j) upload, post or otherwise make available on or through the Software or Platform any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right;
(k) modify, reverse engineer, de-compile, or disassemble the Software or Platform in any manner;
(j) use the Software or Platform except as expressly provided for in this EULA;
(m) incorporate or distribute any of the Software or Platform or any portion thereof in any way with any third party software, including any third party software which contains a programmable interface;
(n) except with a server authorized by us and run by us or our suppliers, use the Software or Platform or any portion thereof remotely or over any server or network or as a hosted product;
(o) permit the Software or Platform to be concurrently or simultaneously used by another person or user; or
(p) remove, disable or circumvent, or attempt to remove, disable or circumvent, any access control or related code, device, process or procedure related to the Software or Platform.
3.1 Modifications. We reserve the right, at any time and without notice to you, to revise, modify or discontinue, temporarily or permanently, any or all of the Software or Platform, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software or Platform.
3.2 Updates. We may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software or Platform or related services (“Updates”). These Updates may be automatically installed without additional notice. You consent to these automatic updates. You acknowledge that you may be required to install Updates to use the Software or Platform. If you do not agree to the Updates, you must stop using the Software or Platform.
3.3 Multiple Environments, Languages, Media, Copies. Where the Platform and Software or elements of the Platform and Software are made available as local copies, unless otherwise specified in this EULA or in an applicable Order, the Software or Platform supports multiple platforms or languages, if you use Software or Platform on multiple media, or if you otherwise receive multiple copies of the Software or Platform, the number of mobile or tablet devices on which the Software or Platform may be installed and used shall at all times be limited to one (1) mobile, tablet, or computer device.
4. OWNERSHIP, COPYRIGHT AND TRADEMARKS
4.1 Ownership of the Software and Platform. All right, title and interest in and to the Software and Platform (including, but not limited to, any and all images, photographs, animations, interfaces, databases, text, applets, source code and any other computer readable code incorporated into the Software and Platform), and any and all associated intellectual property rights therein, are owned by us, our licensors and/or affiliates. This EULA constitutes a license for use only and not in any way a transfer of ownership rights to the Software or the Platform or any portion thereof. The structure, organization and code of the Software and Platform are the valuable trade secrets and confidential information of us and our licensors and affiliates.
4.2 Proprietary Notices. You shall not remove, modify or alter any copyright, trademark or other proprietary rights notices of us or any of our licensors and affiliates from any part of the Software or the Platform.
4.4 Your Feedback. You may, from time to time, provide suggestions, comments or other feedback to us concerning your experience with or use of the Software or the Platform (the "Feedback"). YOU AGREE THAT WE SHALL BE FREE TO USE, COMPILE, PROCESS, ADAPT, DISCLOSE, REPRODUCE, LICENSE, DISTRIBUTE AND/OR OTHERWISE EXPLOIT THE FEEDBACK AS WE SEE FIT IN OUR SOLE AND ABSOLUTE DISCRETION, ENTIRELY WITHOUT OBLIGATION OR RESTRICTION OF ANY KIND ON ACCOUNT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement between us and you, create any confidentiality obligation for us, and we will not be liable to you for any ideas incorporated into our business (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear between the Feedback and our future products, services or operations.
4.5 Your Data. You will retain ownership of any rights you have in the data and other content that you update or permit to update to the Software or the Platform (the “Data”). You hereby grant to us a perpetual, irrevocable, worldwide license to use any Data, without compensation, without any obligation to report on such use, and without restriction.
6. EXCLUSION OF WARRANTY; LIMITATIONS OF LIABILITY
6.1 Exclusions of Warranty.
(i) THE PLATFORM, THE SOFTWARE, THE UPDATES (IF ANY), AND THE SUPPORT SERVICES (IF ANY) ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS BASIS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS MAY BE AGREED BY US IN A SEPARATE WRITTEN AGREEMENT, WE AND OUR SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND LICENSORS DO NOT MAKE OR OFFER ANY REPRESENTATION, WARRANTY, GUARANTEE OR ASSURANCE, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE RELATING IN ANY MANNER TO THE SOFTWARE AND THE PLATFORM. EXCEPT AS MAY BE AGREED BY US IN A SEPARATE WRITTEN AGREEMENT, THERE IS NO REPRESENTATION OR WARRANTY BY US OR ANY OF OUR SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND LICENSORS, OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND THE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ANFTWARE AND/OR THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS, OR THAT THE SOFTWARE OR THE PLATFORM IS OR WILL BE ACCURATE IN ITS RESULTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE AND THE PLATFORM TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
(ii) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU IN CONNECTION WITH THE SUPPORT SERVICES, THE SOFTWARE, OR THE PLATFORM SHALL CREATE ANY WARRANTY OR REPRESENTATION BY US.
(iii) ANY MODIFICATION OR CHANGE IN OR TO THE SOFTWARE OR THE PLATFORM BY YOU OR ANY OTHER PERSON OTHER THAN AN EMPLOYEE OR REPRESENTATIVE AUTHORIZED BY US, SHALL VOID ANY AND ALL REPRESENTATIONS AND WARRANTIES PROVIDED FROM US.
(iv) While we may reference certain results, outcomes, benefits, or situations in the Software or the Platform, in our promotional material or documentation, or otherwise in connection with the Software or the Platform, we make no guarantee, representation, or warranty as to the accuracy of the Software, the Platform and/or any Support Services, or the likelihood of any particular result as a result of use of the Software, the Platform and/or any Support Services.
6.2 Limitation of Liability. THE TOTAL LIABILITY OF US AND OUR SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND/OR LICENSORS IN CONNECTION WITH THIS EULA AND PROVISION OF THE SOFTWARE, THE PLATFORM, AND THE SUPPORT SERVICES TO YOU, SHALL BE LIMITED TO A MAXIMUM OF YOUR APPLICABLE USER FEE FOR USE OF AND SERVICE TO THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND/OR LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE, SALES, DATA, INTERRUPTION OF BUSINESS AND/OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PLATFORM, INCLUDING ANY UNAUTHORIZED USE OF THE SOFTWARE OR THE PLATFORM, OR PERFORMANCE OF THE SOFTWARE OR THE PLATFORM, IN ALL CASES EVEN IF WE OR OUR SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND/OR LICENSORS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Application of Exclusions and Limitations. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF THIS EULA. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY TO APPLY TO YOU, THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.1 Term. The EULA will continue until terminated. You may terminate this EULA at any time and for any reason by discontinuing your use of the Software and Platform.
7.2 Effects of Termination. Upon termination of this EULA for any reason, the License granted to you and all rights, privileges, and licenses granted to you hereunder shall forthwith terminate. We shall not be liable to you, or any third party, for damages of any sort resulting from the termination of this EULA in accordance with its terms.
7.3 Survival. The following provisions survive and will remain in full effect after termination of the EULA: 2 (RESTRICTIONS ON USE), 4 (OWNERSHIP, COPYRIGHT AND TRADEMARKS), 6 (EXCLUSION OF WARRANTY; LIMITATIONS OF LIABILITY), 7.2 (Effects of Termination), 7.3 (Survival), 8 (MISCELLANEOUS), and any other provision of this EULA that must survive to fulfill its essential purpose.
8.1 Entire Agreement. Except as expressly stated in this EULA, the EULA constitutes the entire agreement between you and us with respect to the Software, the Platform and/or any Support Services, and this EULA supersedes all previous communications, representations, warranties, understandings, and agreements, whether electronic, oral, or written, between you and us relating to the subject matter of this EULA.
8.2 Independent Parties. Nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between parties.
8.3 Assignment. This EULA shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. You shall not resell or assign or otherwise transfer your rights or obligations under this EULA without our express written authorization. We may assign or transfer any and all of our rights and obligations under this EULA to any other party without notice to you.
8.4 Waiver and Modification. Any modification of this EULA must be agreed to in a writing signed by our authorized representative, and must specifically reference this EULA. We may modify the terms of this EULA at any time with written notice to you. If you do not agree with any such modification, your only remedy shall be to terminate this EULA. No failure, delay or omission in the exercise of any right or remedy by us shall impair such right or remedy or be construed as a waiver of such right or remedy or any other right or remedy. A waiver, consent or approval of any act of yours by us shall not be deemed to waive or render unnecessary consent to or approval of any other subsequent act of yours.
8.5 Governing Law. This EULA shall be governed by and construed in accordance with the laws of the Province of Alberta (without regard to its conflict of laws provisions) which shall be deemed to be the proper law thereof. The United Nations Convention on the International Sale of Goods shall not apply to the License and your access, download, installation, and use of the Software and/or the Platform. We hereby specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
8.6 Severability. The provisions of this EULA, whether or not contained in the same section, are independent and separable. If any part of this EULA shall be declared or adjudged to be invalid or unenforceable by any court or tribunal of competent jurisdiction or under the laws of the jurisdiction where enforcement is sought, or to the extent that the validity, legality, or enforceability of any limitations on and disclaimers of liability are affected by local consumer protection legislation, such invalidity, illegality or unenforceability shall not invalidate or render unenforceable the entire EULA but rather the entire EULA shall be construed as if not containing the particular invalid, illegal or unenforceable provision or provisions and the rights and obligations of the parties shall be construed and enforced accordingly, with the invalid, illegal or unenforceable provision modified so as to be enforced to the fullest extent possible under the laws of that jurisdiction.
8.7 Arbitration. Any dispute arising out of or in connection with this EULA, including any question regarding its existence, validity, renewal or termination shall be referred to and finally resolved by arbitration in Calgary, Alberta in accordance with Arbitration Act (Alberta), and amendments thereto, or any like statute in effect from time to time.
8.8 Force Majeure. We shall not be liable to the other for any failure or delay in the fulfillment of our obligations under this EULA, when any such failure or delay is caused by fire, flood, earthquakes, locusts, explosions, sabotage, terrorism, pandemic, lack of adequate raw materials (caused by matters beyond our reasonable control), civil commotions, riots, invasions, wars, peril of the sea, acts, restraints, requisitions, regulations, or directions of government authorities (caused by matters beyond our reasonable control), acts of God, or any similar cause beyond our reasonable control, where we have taken any and all appropriate action to mitigate such an event.
8.9 Reservation of Rights. Our rights and remedies set forth in this EULA are in addition to any rights or remedies we may otherwise have at law or in equity.
8.10 Authority to Bind. If you are entering this EULA on behalf of a company or other organization, you warrant that you have authority to do so.
8.11 Interpretation. The language in all parts of this EULA shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. Any rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this EULA. The headings contained in this EULA are used solely for convenience and do not constitute a part of the EULA, nor should they be used to aid in any manner in the construction or interpretation of this EULA. Any reference to “agree”, “agrees”, “represent”, “represents”, “acknowledge”, “acknowledges”, or any “acknowledgement” by you in this EULA, shall refer in all cases to your acceptance of this EULA through downloading, installing, accessing, or making use of the Platform and/or the Software in accordance with this EULA.