Helix Subscription Service Agreement Last updated November 1, 2023
This Helix Subscription Service Agreement (the “Agreement”) is between you and HelixML Inc. (“Helix”). The terms also apply to your use of the Service and any updates to the Service, except to the extent they are provided pursuant to separate terms.
BY INSTALLING, DOWNLOADING, OR OTHERWISE ACCESSING THE SERVICE YOU EXPRESSLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE EITHER YOURSELF OR ON BEHALF OF THE ENTITY.
Definitions. Capitalized terms shall have the meanings defined herein. “Add-on Services” means those additional software or services that may be offered in the future as additional software or services at such prices as may be noted by Helix at that time.
“Customer” or “you” shall mean the entity you represent or, if that does not apply, to you individually.
“Customer Data” means all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer in the course of using the Helix Platform. For avoidance of doubt, Customer Data does not include data and information related to Customer’s use of the Helix Platform that is used by Helix in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Helix Platform, or any other information reflecting the access and use of the Helix Platform by or on behalf of Customer or its Users (“Usage Data”).
“Helix Runner” means the downloadable object-code and source-code of the software component of the Helix Platform which acts as a GPU memory scheduler.
“Helix Hub” means the hosted component of the Helix Platform providing a UI and persistence for interactions with AI sessions.
“Helix Platform” or “Service” means the Helix subscription service software, and components thereof, ordered by Customer as set forth in an applicable Order Form, including Helix Runner, Helix Hub, and any Add-on Services, as well as any updates thereto. Except for certain third-party software expressly set forth in an applicable Order Form, the Helix Platform does not include Third-Party Products or content available in a registry or repository via the Helix Platform, which are instead subject to the corresponding third-party’s license or terms.
“Documentation” means the Helix Platform documentation made available by Helix on the Helix website at https://helix.ml.
“Evaluation Services” means software or services that are distributed or otherwise made available for Customer to try at its option, at no additional charge, and which are designated as beta, limited release, developer preview, non-production, proof of concept, evaluation, or that are similarly described in the corresponding Order Form, applicable Evaluation Services registration process or Documentation. The terms applicable to such Evaluation Services shall be set forth in an applicable Order Form or addendum to this Agreement.
“Offering” means the level of service, components and features you have chosen from the Service description offerings described on the Pricing Page (Personal, Pro, Team, and Business).
“Open Source Software” means third-party software that is distributed or otherwise made available as “free software”, “open source software” or under a similar licensing or distribution model.
“Order Form” means the digital or physical ordering document identifying the products and related fees as applicable for Customer’s purchases from Helix. Order Forms shall be deemed incorporated herein by reference.
“Pricing Page” means the Pricing and Subscriptions page which has a description of the Offering tier of the Service set forth at https://helix.ml/#pricing.
“Data Processing Agreement” means Helix’s data processing agreement available at https://github.com/helixml/helix/blob/main/data-processing-agreement.md.
“Subscription Term” means the period of time set forth in the applicable Order Form during which Customer is authorized to use the Helix Platform.
“Third-Party Products” means optionable Web-based or downloadable software or services licensed by third-parties and that Helix may make available for Customer to use in conjunction with the Helix Platform. Except as otherwise specified in an Order Form, such Third-Party Products shall be subject to the corresponding third-party’s license or terms, as applicable.
“User” means an individual authorized by Customer to log into or to otherwise use the Helix Platform for Customer’s internal business purposes and in accordance with the terms of this Agreement and the applicable Order Form. For paid Offerings, Users may include but are not limited to employees, consultants, contractors, and agents of Customer or its affiliates subject at all times to the license restrictions of this Agreement.
License and Ownership. 2.1 Subject to the terms and conditions of the Agreement and the applicable Order Form, Helix hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the applicable Subscription Term for Customer to permit its Users to: (i) download, install, run, and use Helix Runner and (ii) access and use Helix Hub, and otherwise access and use the Helix Platform, in accordance with the applicable Documentation for Customer’s internal business purposes. Helix owns the Usage Data. Nothing herein will be construed as restricting or prohibiting Helix from utilizing the Usage Data in any way, including to optimize and improve the Helix Platform or related Helix services so long as the Usage Data remains aggregated and de-identified, or to enforce this Agreement.
2.2 The Helix Platform is made available for use or licensed, not sold. Customer acknowledges and agrees that this Agreement does not transfer to Customer any Helix or third-party intellectual property rights. Customer acknowledges and agrees that, as between Helix and Customer, Helix owns all right, title, and interest in and to the Helix Platform (including any improvements, modifications, and enhancements thereto), and Helix shall, notwithstanding any other term of this Agreement, remain the owner of the Helix Platform. All rights not expressly granted by Helix herein are reserved.
2.3 During the Subscription Term, Helix will provide support for the Helix Platform in accordance with the Service Level Agreement & Terms available at https://helix.ml/, as applicable to the products and support purchased via an Order Form.
Subscription Term; Payment. 3.1 The length of the Subscription Term. The Subscription Term will automatically renew for additional 12-month periods unless a party provides at least 30 days’ written notice prior to the end of the then-current term that such party does not wish to renew for the upcoming term. All payment inquiries should be directed to receivables@helix.ml.
3.2 For an Offering purchased or otherwise facilitated through our sales team, pricing and other relevant terms will be set forth in the applicable Order Form. Pricing and other relevant terms will be set forth in the applicable Order Form. Unless stated specifically otherwise on the Order Form, all payments to Helix are due within 30 days of the invoice from Helix to you. Late payments will bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). In addition to any of Helix’s other rights or remedies, Helix reserves the right to disable or suspend Customer’s and its User’s access to the Helix Platform for any failure by Customer to pay due invoices in accordance herein. All payment inquiries should be directed to receivables@helix.ml.
3.3 Except as otherwise expressly set forth in this Agreement, all payments by Customer hereunder are non-refundable and shall be made free and clear of and without reduction for all applicable withholding, sales or use, goods and services, value added, consumption or other similar fees or taxes imposed by any government (other than taxes on the net income of Helix), which shall be paid by Customer. Accordingly, if you are required to withhold any taxes on the amounts payable to Helix hereunder, you shall pay Helix such additional amounts as are necessary to ensure receipt by Helix of the full amount which Helix would have received but for the deduction on account of such withholding. You shall provide Helix with official receipts issued by the appropriate governmental agency, or such other evidence as is reasonably requested by Helix to establish that such taxes have been paid. Where applicable law requires you to self-assess or reverse-charge any taxes, you shall be responsible for complying with such law. In such a case, you undertake to provide Helix with your valid VAT registration number that is relevant to the Service provided under the terms of this Agreement. The amounts of any taxes required to be paid by Helix will be added to Helix’s invoice, and you shall promptly remit such amounts to Helix, as the collection agent, upon invoice. Helix reserves the right to disable your access to the Service for any failure to pay or any late payment.
License Limitations; Use Restrictions. 4.1 General License Limitations.
(a) Customer’s license to use the Helix Platform may subject to certain general restrictions and limitations depending on the Offering Customer has chosen, including but not limited to quantity of data stored, age of data stored, number of sessions, number of inferences or fine tuning jobs, or the number of collaborators on an account, as set forth on the applicable Order Form or Documentation.
(b) Customer agrees that it is responsible for Customer’s and its Users’ conduct while accessing or using the Helix Platform and for any consequences thereof. Customer agrees to use the Helix Platform only for purposes that are legal, proper and in accordance with this Agreement, the Order Form, and any applicable laws or regulations. Customer and its Users shall not, and shall not encourage any third party to: (i) modify, adapt, alter, translate, or create derivative works of the Helix Platform; (ii) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Helix Hub, in whole or in part, except to the extent that such activities are permitted under applicable law; (iii) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Helix Platform to any third party other than to Users; (iv) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Helix or its licensors or suppliers contained on or within any copies of the Helix Platform; (v) use the Helix Platform for the purpose of creating a product or service competitive with the Helix Platform; (vi) remove, minimize, block or modify any notices of Helix or its licensors or suppliers in the Helix Platform; or (vii) use the Helix Platform other than as described in the applicable Documentation or for any unlawful purpose.
(c) Customer agrees that the Helix Platform should not be used as the basis to deploy systems that must be hardened or highly secure, or involve mission-critical business operations, the operation of nuclear facilities, aircraft navigation, important communication systems, medical devices, air traffic control devices, real time control systems or other situations in which an inaccuracy or error in a report or in the service could lead to death, personal injury, or physical property or environmental damage.
4.2 Specific License Limitations – Helix Runner.
(a) The Helix Runner component of the Service at the level of the Personal Offering (as described on the Pricing Page) is further restricted to: (i) your “Personal Use”, (ii) your “Educational Use”, (iii) your use for a non-commercial open source project, and (iv) your use in a “Small Business Environment”.
(b) For purposes of this Section 4.2: (i) “Personal Use” is the use by an individual developer for personal use to develop free or paid applications, (ii) “Educational Use” is the use by members of an educational organization in a classroom learning environment for academic or research purposes or contribution to an open source project and (iii) a “Small Business Environment” is a commercial undertaking with fewer than 250 employees and less than US $10,000,000 (or equivalent local currency) in annual revenue; and (iv) with the exception of Educational Use, Government Entities are prohibited from using the Helix Runner component of the Service at the level of the Personal Offering. “Government Entities” means (1) any federal, national, supranational, state, provincial, Commonwealth, local or foreign or similar government, governmental subdivision, regulatory or administrative body or other governmental or quasi-governmental agency, tribunal, commission, court, judicial or arbitral body or other entity with competent jurisdiction; (2) any entity directly or indirectly owned or controlled by the government or a government organization; (3) any entity created by law or decree; (4) any entity whose principal source of funds comes from the government; or (5) any department, agency, or instrumentality of a public international organization. It is within Helix’s sole discretion to determine if an entity is considered a Government Entity under the terms of this definition.
4.3 Use Restrictions. Customer and its Users may not and may not allow any third party to:
Send, upload, distribute, or disseminate or offer to do the same with respect to any defamatory, harassing, abusive, fraudulent, obscene or otherwise objectionable content; Distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any content; Upload, post, transmit or otherwise make available through the Service any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any third party; Upload, post, transmit or otherwise make available through images any Personally Identifiable Information (PII), trade secrets or sensitive or confidential information in violation of contractual, professional or other similar obligations. Download any content posted by another user that you know, or reasonably should know, that cannot be legally distributed in such a manner; Submit content that falsely expresses or implies that such content is sponsored or endorsed by Helix; Interfere with other users’ enjoyment of the Service; Exploit the Service for any unauthorized commercial purpose, including without limitation mirroring or replicating content for a commercial service; Modify, adapt, translate, or reverse engineer any portion of the Service, unless authorized by Helix; Remove any copyright, trademark or other proprietary rights notices contained in or on the Helix Platform or any content posted thereon; Reformat or frame any portion of the web pages that are part of the Helix Platform’s administration display; Use the Helix Platform in connection with illegal peer-to-peer file sharing; Display any content on the Helix Platform that contains any hate related or violent content or contains any other material, products, or services that violate or encourage conduct that would violate applicable laws; Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Helix Platform or the content posted thereon or to collect information about its users for any unauthorized purpose; Create user accounts under fraudulent pretenses; or Use the Helix Platform, or any interfaces provided with the Helix Platform, to access any Helix product or service in a manner that violates this Agreement.
4.4 Usernames.
(a) Helix reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal claims or trademarks to those usernames. Users of business names and/or logos that may be considered misleading to others may be permanently suspended. Helix also reserves the right to reclaim usernames using Helix trademarks or usernames that violate our trademark guidelines.
(b) Customer and its Users shall not engage in username squatting. Users with an account that is inactive for more than 6 months may be terminated at Helix’s discretion and without further notice. Helix takes into account several factors when determining what conduct is considered to be username squatting including, without limitation: (i) the number of accounts created; (ii) creating accounts for the purpose of preventing others from using those account names; and (iii) creating accounts for the purpose of selling those accounts. Customer and its Users shall not buy or sell usernames.
Customer Data. Helix acknowledges that, as between Helix and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to Helix a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data solely as may be necessary for Helix to provide the Helix Platform including updates and upgrades thereto. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and completeness of all Customer Data. In the event Customer Data includes any personal information, Helix will process such information in accordance with its Data Processing Agreement.
Open Source Software. Any part of the Helix Platform that contains or utilizes Open Source Software is distributed and made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files or Documentation. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files or Documentation. The Helix Platform shall not include any code licensed under any “viral” or “copyleft” license.
Records and Audit. Customer shall establish and maintain complete and accurate records related to Customer and its Users use of the Helix Platform, and any such other information as reasonably necessary for Helix to verify compliance with the terms of this Agreement and any applicable Order Form. Upon at least ten (10) days’ prior notice to Customer, Helix or its representative may inspect such records to confirm Customer’s compliance with the terms of this Agreement and any applicable Order Form. If Customer’s records or Helix’s Helix Platform records reveal that Customer or Customer’s Users have exceeded their permitted use of the Helix Platform, Helix may invoice Customer for any past or ongoing underpaid amounts resulting from such excess use and Customer will promptly pay Helix such amounts upon receipt of invoice. This remedy is without prejudice to any other remedies available to Helix at law or equity or under this Agreement. To the extent Helix is obligated to do so, Helix may share audit results with certain of its third-party licensors or assign the audit rights specified herein to such licensors.
Term and Termination. This Agreement commences on the Effective Date and will remain in effect until it is terminated in accordance with the terms herein. Either party may terminate this Agreement and any Order Form if the other party materially breaches the terms and conditions of this Agreement and fails to cure such breach within 30 days of receiving written notice thereof. If there are no outstanding Order Forms, either party may terminate this Agreement upon at least 30 days’ prior written notice to the other party. Upon the expiration or termination of this Agreement or an applicable Order Form, the license to the Helix Platform will automatically terminate and Customer will discontinue all use of the Helix Platform. Sections 4.4, 5, 7, 9, 10, 12, and 14 shall survive any termination or expiration of this Agreement or any Order Form.
Feedback. Upon submitting any Customer or User suggestions, proposals, ideas, recommendations, bug reports, ideas, improvements or other feedback regarding Helix’s products and services (“Feedback”), Customer grants to Helix a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit feedback (including by incorporation of such feedback into the Helix Runner, Helix Hub, the Helix Platform, and any other Helix services) without restriction. Feedback expressly excludes any Customer Confidential Information and Customer Data.
Confidentiality. 10.1 Definition. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential.
10.2 Exceptions. The confidentiality obligations in this Section 10 shall not apply with respect to any information which Recipient can demonstrate: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of Discloser’s Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not knowingly in violation of Discloser’s rights.
10.3 Restrictions on Use and Disclosure. Recipient agrees not to use Discloser’s Confidential Information or disclose, distribute, or disseminate Discloser’s Confidential Information except in furtherance of the performance of its obligations or enforcement of its rights hereunder or as otherwise expressly agreed by Discloser in writing. Recipient agrees to restrict access to such Confidential Information to those employees, agents, contractors, or consultants of Recipient who need to know such Confidential Information for performing as contemplated hereunder and are bound by confidentiality obligations no less protective than those contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of Discloser’s Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than reasonable care.
10.4 Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall, to the extent permitted by applicable law, give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a protective order. Recipient shall not be in breach of its obligations in this Section 10 if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.
10.5 Injunctive Relief. Recipient acknowledges that breach of the confidentiality obligations may cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser may be entitled to seek immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient, and that Discloser shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
10.6 Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser’s reasonable request, Recipient shall promptly (and in any event within 30 days) return to Discloser or destroy, at the election of the Discloser, any Confidential Information of the Discloser in Recipient’s possession. In addition, within 30 days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient and confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to comply with the foregoing.
Security Helix will maintain reasonable administrative, physical, and technical security measures consistent with applicable law and current prevailing security practices and that are intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Customer’s Data or the Helix Platform. Such additional measures will include compliance with the Security and Privacy Guidelines. Helix shall notify Customer of any confirmed security breach as soon as reasonably possible thereafter but in any event within seventy-two (72) hours of a breach involving Customer Data.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT USE OF THE HELIX PLATFORM IS AT CUSTOMER’S SOLE RISK AND THAT THE HELIX PLATFORM AND DOCUMENTATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” HELIX, ITS SUBSIDIARIES, AND ITS AFFILIATES MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE HELIX PLATFORM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HELIX OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HELIX AND ITS SUBSIDIARIES AND AFFILIATES DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE HELIX PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, OR (B) CUSTOMER’S USE OF THE HELIX PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT HELIX’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE HELIX PLATFORM IS NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. HELIX DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.
Indemnification. 13.1 By Helix. Subject to the limitation on liability set forth in Section 14,Helix shall defend at its own expense any legal action brought against you to the extent that it is based on a claim or allegation that the Service (excluding any Open Source Software) infringes a U.S. patent or copyright of a third party, and Helix will pay any costs and damages awarded against you in any such action, or agreed to under a settlement signed by Helix, that are attributable to any such claim but shall not be responsible for any compromise made or expense incurred without Helix’s consent. Such defense and payments are subject to the conditions that you (a) give Helix prompt written notice of such claim, (b) tender to Helix sole control of the defense and settlement of the claim, and (c) reasonably cooperate with Helix when requested in connection with the defense and settlement of the claim. Helix will have no liability to so defend and pay for any infringement claim to the extent it (i) is based on modification of the Service other than by Helix, with or without authorization; (ii) results from your failure to use an updated version of the Service; or (iii) is based on the combination or use of the Service with any software (including, without limitation, Open Source Software), program or device not provided by Helix if such infringement would not have arisen but for such use or combination; or (iv) results from use of the Service by you after the license was terminated..
13.2 Limitation on Infringement Claims. Helix will have no liability to Customer Indemnitees or any obligations under this Section 13 to the extent a claim arise out of: (a) the modification of any portion of the Helix Platform by any party other than Helix or its authorized representatives; (b) the combination, operation, or use of any Helix Platform with other product(s), data, third party software, or services where the Helix Platform would not by itself be infringing; (c) the continued use of the allegedly infringing Helix Platform after being notified of the infringement claim or after being provided a modified version of the Helix Platform by Helix to address any alleged infringement; or (d) the failure to use the Helix Platform in accordance with the applicable Documentation or outside the scope of the rights granted under this Agreement. Should the Helix Platform, or the operation thereof, become or in Helix’s opinion be likely to become, the subject of such claim described in Section 13.1, Helix may, at its option and expense, (i) procure the right for Customer to continue using the Helix Platform, or (ii) replace or modify the Helix Platform so that it becomes non-infringing. If neither (i) or (ii) are reasonably practicable, Helix may terminate the applicable Order Form and refund to Customer any pre-paid, unused fees paid by Customer corresponding to the unused period of the Subscription Term. THIS SECTION 13 STATES HELIX’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
13.3 By Customer. Customer shall defend and hold Helix and its affiliates, officers, directors, agents, and employees (“Helix Indemnitees”) harmless against any third party claims and actions arising from (a) an allegation that Customer Data infringes the intellectual property rights of any third party, and (b) any use by Customer or its Users of the Helix Platform in violation of the license restrictions or violation of applicable laws, rules or regulations in connection with the Helix Platform. , and shall indemnify the Helix Indemnitees against any damages, judgments, litigation costs including any reasonable attorneys’ fees.
13.4 Procedure. The party seeking indemnification will notify the indemnifying party promptly of any claim or action covered by this Section 13. The parties agree to reasonably cooperate during such proceedings. The indemnifying party will have the right to defend any such claim and will have control over the litigation, negotiation, and settlement of any such claim, provided it will not make any settlement of a claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of such party, which will not be unreasonably withheld. The indemnified party may, at its sole expense, participate in the defense of any claim.
Limitation of Liability. 14.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT HELIX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL IN NO EVENT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
14.2 Liability Cap. THE TOTAL LIABILITY OF HELIX ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE RELEVANT SERVICE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Export Restrictions. Customer understands that the Helix Platform is subject to United States export controls administered by the United States Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control. Customer acknowledges and agrees that the Helix Platform may not be used, transferred or otherwise exported or re-exported to countries as to which the United States, maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Entity List, Denied Persons List, or Unverified List, or the U.S. Department of State’s Nonproliferation Sanctions list (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Helix Platform, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply with all United States export laws and assumes sole responsibility for obtaining United States government export licenses to export or re-export as may be required. Customer will defend, indemnify, and hold Helix and its licensors harmless from and against any liabilities arising from Customer’s or any of its officers, directors, employees, agents, or representatives violation of such laws or regulations.
US Government Users. The Helix Platform and any other software covered under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Helix Platform and any other software and Documentation covered under this Agreement with only those rights set forth herein.
Governing Law and Jurisdiction. The Agreement and all of its Order Forms will be governed as follows:
For Helix Personal and any other no-fee Offering accounts:
Governing law: Courts with exclusive jurisdiction: The laws of the State of California and controlling United States federal law. The state and federal courts located within the county of Santa Clara, California. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by JAMS (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Santa Clara County, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
For all Offering accounts subject to a fee the Agreement will be governed as follows based on the Customer’s place of domicile:
Customer’s domicile: Governing law: Courts with exclusive jurisdiction: In the Americas, Asia Pacific, India, Israel and any other region other than as specified below. The laws of the State of California and controlling United States federal law. The state and federal courts located within the county of Santa Clara, California. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by JAMS (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Santa Clara County, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief from a court of competent jurisdiction. In the European Union, the European Economic Area, Switzerland, Africa or the Middle East (other than Israel). The laws of the Netherlands. The courts of Utrecht, albeit not until the parties have pursued the IT Mediation Regulations of the Stichting Geschillenoplossing Automatisering (SGOA) in The Hague. The parties agree to participate in the mediation in good faith, and to share its costs equally. In the United Kingdom. The laws of England and Wales. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be one.
The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
The parties agree that the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods will not apply to this Agreement.
Miscellaneous. 18.1 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), provided that Helix may assign this Agreement, without Customer’s consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
18.2 Legal Notices. Any notices hereunder must be in writing. Helix may provide notice to Customer through Customer’s signup email address, the address provided in the applicable Order Form, customer’s account or in-product notifications. Customer agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to Customer will be deemed given upon the first business day after Helix sends it. You will provide notice to us by mail to: HelixML Inc. 63193 Logan Ave, Bend, OR 97701, USA, Attn: Legal Department, with an email copy to to legal@helix.ml.
18.3 Changes to the Terms. Helix may modify these terms from time to time, with notice to Customer in accordance with Section 18.2 (Legal Notices) or by posting the modified terms on our website. Together with notice, we will specify the effective date of the modifications.
18.4 Contractual Relationship. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
18.5 Integration and Order of Precedence. This Agreement, including all Order Forms, constitutes the entire agreement between Customer and Helix concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. The terms of an Order Form will prevail over the general terms herein only if such Order Form expressly references this Agreement, the intent to prevail over this Agreement, and is signed by authorized signatories of both Helix and Customer. Section headings are for convenience only and shall not affect interpretation of the relevant section. No provision of any purchase order or other form employed or provided by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect.
18.6 Force Majeure. Except for the inability to meet financial obligations, neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, computer-related attacks, hacking, internet service provider failures or delays, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government (each a “Force Majeure Event”). The parties agree to use their best efforts to minimize the effects of such failures or delays. For the avoidance of doubt, Customer understands that the Helix Platform may not be provided in countries listed in the Office of Foreign Assets Control sanction list and Customer’s access to the Helix Platform may be restricted in such countries. Such prohibitions shall not constitute a Force Majeure.
18.7 Non-waiver. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
18.8 Third-party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.
End of Helix Subscription Service Agreement.