Terms of Use

Effective August 14, 2023

THESE TERMS OF USE (THE “AGREEMENT”) ARE A BINDING CONTRACT BETWEEN YOU AND DAY AI, INC. (“DAY,” “DAY AI,” “WE,” OR THE “COMPANY”).  THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES. BY ACCESSING, USING OR REGISTERING TO USE ANY OF THE SERVICES, YOU ARE CONCLUDING A LEGALLY BINDING AGREEMENT WITH THE COMPANY BASED ON THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE ANY OF THE SERVICES. 

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION/JURY TRIAL WAIVER THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS CONTAINED HEREIN, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.

IF YOU ARE LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND, OR UNITED KINGDOM, OUR PRIVACY POLICY ACCOMPANIES THESE TERMS AND SETS FORTH OTHER TERMS OF OUR AGREEMENT THAT APPLY SOLELY TO THE EXTENT ANY INFORMATION YOU PROVIDE TO US INCLUDES PERSONAL DATA OF INDIVIDUALS LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND, AND THE UNITED KINGDOM.

Access and Use 

(a) Limited License. Subject to your compliance with all of the terms and conditions of this Agreement, the Company hereby grants you a revocable, non-exclusive, non-transferrable, non-sublicensable, limited right to (i) access and use our applications, mobile applications, tools, website, and other services (the “Services”) and (ii) use the user manuals, handbooks, guides, FAQs, and instructional videos provided by the Company (collectively, the “Documentation”). You are not granted a license to use any software by this Agreement. The Company reserves the right, without prior notice, to modify or change the Services, to stop providing all or part of the Services or any features of the Services, or to impose or create usage limits on the Services at any time.

(b) License Restrictions. Other than to the extent required by law, you may not (i) copy, modify, transfer, license, sublicense, sell, redistribute, republish, communicate to the public, display, share, distribute, sublicense, adapt, lease, lend, rent or otherwise exploit any of the Company IP, including the Services, except in accordance with this Agreement; (ii) decompile, reverse-engineer, disassemble, reverse assemble, modify, create derivative works or attempt to discover or derive any source or object code, circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information of any of the Company IP, including the software underlying the Services other than, with respect to any underlying code subject to an open source license, in accordance with such license; (iii) copy or adapt the object code of the software underlying the Services or aid or abet any third party to do the same (whether or not for your benefit); (iv) use any of the Company IP, including any of the Services, in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement; (v) insert any code, product or material to manipulate the Company IP in any way that affects any user’s experience; (vi) copy or seek to copy or “rip” any audio and/or audiovisual content from the software underlying the Services; or (vii) use the Services in connection with any of your time-critical or mission-critical functions.  Any action or attempted action that is in breach of this Agreement is a violation of the rights of Company and/or its licensors.  If you breach any restriction contained in this Agreement, you may be subject to prosecution and damages and to loss of access to the Services.

(c) Personal Accounts. To access the Services, you must register for a Personal Account (a “Personal Account”), which requires you to provide us with certain information about yourself, such as your name and contact information. You are responsible for maintaining the confidentiality of your Personal Account and you accept responsibility for activities that occur in your Personal Account. You are responsible for keeping your email access secure. You may not designate third parties to access and use the Services under your Personal Account. Your Personal Account is personal to you. In the event of any security breach or unauthorized use of your Personal Account, you must immediately notify the Company.  The Company is not liable for any loss caused by any unauthorized use of your Personal Account. 

(d) Corporate Clients. If you are a corporate client, this Agreement does not apply to you and the terms of the relationship between you and the Company are as set forth in the agreement between you and the Company. Please note that if you access our Services through a third-party account that is linked to, created by, or maintained by your employer or any other party that has an Enterprise Agreement with us ("Enterprise Account"), that employer or entity may have access to your Customer Content and the terms of our Enterprise Agreement with such party will control if such terms conflict with this Agreement notwithstanding anything contained herein to the contrary.

Acceptable Use

You represent that (i) you will not publish any private information about anyone without their permission; (ii) you will not harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party or submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, bullying, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iii) you will not post advertisements; (iv) you will not impersonate another person, (v) you will not solicit another user’s account information; and (vi) you will not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass, burdening network capacity or violating any applicable email spam laws, including the CAN-SPAM Act.   We reserve the right to disable access to your Personal Account at any time and without prior notice, in our sole discretion, if we consider you to be in violation of this Agreement or otherwise harmful to the Services.

General Payment Terms

(a) Authorization. You authorize the Company to charge all sums for the Services that you use, including all applicable taxes, to the payment method designated in your Personal Account. You consent to the disclosure of your payment information to our third-party payment processors and authorize us to use such payment processors. You will keep your billing information up to date.

(b) Fees and Pricing.  All fees are in US Dollars and are non-refundable other than as set forth herein. Any required payment for the Services will be charged in advance starting on the day you subscribe to the Services.  Other than to the extent that you and the Company have a binding agreement with respect to pricing for a certain period, prices are subject to change at any time in the Company’s sole discretion.  Where Company cancels your subscription due to no fault of yours and the Services do not resume, Company will provide a refund of any pre-paid subscription fees which relate to any period of time after the cancellation.  Once you have paid: (i) a fixed upfront payment for a fixed duration, you will be unable to cancel the subscription or receive a refund; and/or (i) a recurring fee on a monthly basis, you will be unable to cancel that first month subscription, but can cancel at any time thereafter upon 30 days’ notice. Your subscription will expire on the date of expiry of your current subscription period. If you choose to cancel your subscription before the end of the period for which you paid a subscription fee, you will not receive a refund for the remaining period. 

(c) Sales Tax. All fees are exclusive of sales tax. You agree that we may charge you sales tax, as applicable, and you agree to pay any such sales tax.

Term and Termination

This Agreement will apply for so long as you use the Services. Your access to the Services and your subscription may be terminated at any time by the Company in its sole discretion if (i) you are required to make any payment and your payment method or details are invalid or rejected; and/or (ii) you breach, or the Company suspects that you have breached, this Agreement and/or the Privacy Policy.  After termination, you shall cease all use of the Services and no longer access the Services and/or access your Customer Content through our Services. The provisions of this Agreement which by their intent or meaning are intended to survive such termination shall continue to apply indefinitely. To the extent that you have a subscription, the term of your subscription will automatically renew on an on-going basis for additional 12-month periods unless you notify us of your desire not to renew on or before the date that is 30 days before the auto renewal date or your subscription is otherwise terminated by the Company as set forth herein. The subscription period can be month-to-month, yearly, or another period as more fully described on our website. Each renewal term may include a price increase of the Consumer Price Index (“CPI”) + 3% unless we notify you of a different rate before each renewal term starts.

Ownership and Proprietary Rights

You acknowledge and agree that the Services, including all materials provided by the Company therein, including without limitation software, the Documentation, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music, Aggregated Data (as defined herein), Enrichment Data (as defined herein), and any other products or services provided to you by the Company and any information, data, or other content derived from the Company’s monitoring of your access to or use of the Services (collectively, the “Company IP”) contain valuable intellectual property of Company and is considered, and all intellectual property rights therein are considered, the Company’s proprietary information, as applicable. All rights in and to the Company IP not expressly granted to you in this Agreement are reserved. The Company IP is protected by copyright, trademark, and other laws of the United States and foreign countries. You may not modify, copy, rent, lease, distribute, create derivative works of, or in any way exploit, any of the Company IP, in whole or in part.  You may not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company IP. 

“Aggregated Data” means information and data regarding your use of, and the operation of, the Services in an aggregated or anonymized form, including compiled statistical and performance data related to the Services. You hereby expressly authorize Company to monitor your use of the Services and to collect, create, process, transmit, store, use, disclose, and compile Aggregated Data, including Aggregated Data based on your Customer Content, for its business purposes, including for machine learning and training, industry analysis, benchmarking, and analytics. You agree that we may use and make public Aggregated Data to the extent permitted by applicable law provided that such Aggregated Data is in an aggregated or deidentified form only and will not identify you or disclose any personally identifiable or confidential information.

“Enrichment Data” means information that the Company makes available to you that the Company gathers from public sources, third-party sources (including other Day customers that have given Day permission to include their data in Enrichment Data, and from you to the extent that you opt in to having your Customer Content included in our Enrichment Data. Enrichment Data is updated in real time as we get new information. Other than to the extent you opt in to having your Customer Content including in Enrichment Data, Enrichment Data does not include your personally identifiable data and we would not use your Customer Content to populate Enrichment Data. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Services. We reserve the right to change what Enrichment Data we provide, or discontinue providing Enrichment Data at any time with or without notice to you. To the extent that Enrichment Data may include your Google data, including any Gmail data, such data shall only be included in Enrichment Data to the extent allowed by Google as described in our Privacy Policy. Nothing in this Agreement gives you any rights in or to any part of the Enrichment Data generated by the Company.

The Services may be implemented using machine learning systems with features and implementations designed to generate statistics, calibrate data models, and improve algorithms in the course of processing Customer Content and Technical Data (“Machine Learning”). Nothing contained in this Agreement prohibits the Company from using such Machine Learning for testing, tuning, optimizing, validating, or otherwise enhancing the analytics, models, or algorithms underlying the Services. Nothing in this Agreement gives you any rights in or to any part of the Services or the Machine Learning generated by the Company or the Machine Learning generated in the course of providing the Services.

You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the Services (“Feedback”) will be the sole and exclusive property of the Company and you hereby irrevocably assign to us all of your right, title and interest in and to all Feedback, including without limitation all worldwide copyright rights and other proprietary or intellectual property rights therein. You further acknowledge and agree that at the Company’s request and expense, you will execute documents and take such further acts as the Company may reasonably request to assist the Company to acquire, perfect, and maintain its intellectual property rights and other legal protections in and to the Feedback.

Trademark Notices

All trademarks, service marks, logos and designs used in connection with the Services, whether registered or unregistered, are owned or licensed by the Company or used by the Company subject to the fair use doctrine or they are in the public domain. You may not use or display any trademarks, service marks, logos or designs owned by Company without our prior written consent.

Third-Party Providers

In order to provide the Services, we integrate our Services with third-party websites, applications and service providers (each, a “Third-Party Provider”), including providers of email services, as permitted by the terms and conditions of each Third-Party Provider. We reserve the right, in our sole discretion, to integrate our Services with those Third-Party Providers as we select and to terminate the integration of the Services with any Third-Party Provider without notice.  Through our Services, you may access certain content from and through such Third-Party Providers (“Your User-Accessible Content”). If you chose to link your Personal Account to any Third-Party Provider account, we will access your Third-Party Provider account information and Your User-Accessible Content from these sites on your behalf through OAuth Access Tokens to make certain information or services available to you through the Services.  When you link these other accounts to your Personal Account and/or the Services, you expressly authorize us to access your Third-Party Provider account information and Your User-Accessible Content from those third-party accounts on your behalf as your agent and you permit us to access, use and, in some cases, store your Third-Party account information and Your User-Accessible Content to accomplish the foregoing. Please be aware that personally identifiable information within your Third-Party Provider accounts may be available in the Services through your Personal Account once you link a Third-Party Provider account to your Personal Account. You may only link to Third-Party Provider accounts that are yours.  To the extent that a Third-Party Provider requires you to have a paid subscription, you are responsible for all fees associated with your subscription. You are responsible for your relationship with the Third-Party Providers that you obtain Your User-Accessible Content through and your right to share Your User-Accessible Content with us and users of our Services.  Company has no responsibility or liability with respect to any Third-Party Provider account and Company has no obligation to provide any support or maintenance services in connection with the services provided by any Third-Party Provider. 

Customer Content

We claim no ownership rights over any content that you provide, submit, post, display, upload, or input through the Services, including email, calendar, and related content, including Your User-Accessible Content, and output, copies, reproductions and other derivative works generated by our Services from such content (collectively, the “Customer Content”). Notwithstanding anything to the contrary herein and for the sake of clarification, Customer Content does not include Company IP, including Enrichment Data and Aggregated Data (as defined herein).

Posting, displaying, providing or otherwise making available to the Company any Customer Content on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a royalty-free and fully paid, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, host, store, transfer, export, perform, display, process, transform, make derivative works of, incorporate into other works, and otherwise use and exploit your Customer Content, in whole or in part, and in any form, media or technology, and in any media formats and through any media channels whether now known or hereafter developed, as necessary to: (i) provide and improve the Services (including, without limitation, through machine learning applications, for machine learning to support certain product features and functionality within the Services, and in connection with improving, enhancing and modifying artificial intelligence models), (ii) generate log files, event files, and trace diagnostic files, Aggregated Data, Enrichment Data and other data and information from the operation of the Services and related systems and technologies and the use of the Customer Content (collectively, “Technical Data”) and to collect and analyze such Technical Data, and (iii) use and disclose Technical Data to improve the Services and the Company’s related products and services (including through machine learning applications) and provide analytics and benchmarking services.

In connection with your Customer Content, you represent, warrant and covenant that: (i) you have the consent of each and every identifiable natural person in the Customer Content, if any, to use such person’s name or likeness in the manner contemplated by the Services and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (ii) you have obtained and are solely responsible for obtaining all consents as may be required by law to post any Customer Content relating to third parties; (iii) your Customer Content and our use thereof as contemplated by this Agreement and the Services will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights; (iv) we may exercise the rights to your Customer Content granted under this Agreement without liability for payment of any fees and such access will not create any usage limitations; (v) you are solely responsible for your Customer Content and any obligations regarding its accuracy, quality, integrity, reliability and legality; (vi) you assume all risks associated with your Customer Content and any reliance by others on its accuracy, completeness or usefulness, or any disclosure of your Customer Content that identifies you or others; and (vii) to the extent that you use a feature of the Services that allows you to record and/or upload individual recorded conversations or calls or other electronic communications, you agree to comply with all applicable laws, rules and regulations relating to the recording of phone calls or other electronic communications, you acknowledge that the laws regarding the notice and notification requirements of such recorded conversations vary by location, you acknowledge and agree that you are solely responsible for providing any notices to, and obtaining proper consent from, individuals in connection with and prior to making any recordings and/or undertaking any uploads as required under applicable law, and you acknowledge that we do not make any representations or warranties with respect to any feature provided by us to help you comply with call recording laws. With respect to Your User-Accessible Content, you represent and warrant to the Company and covenant and agree with the Company that (i) you have the right to access through the Services Your User-Accessible Content and the right to grant us the rights provided in this Agreement, (ii) the Company is not liable for Your User-Accessible Content, (iii) Your User-Accessible Content and your use thereof is subject to the terms and your agreement with the Third-Party Provider and that the Company is not a party to that agreement, and (iv) the Company is not responsible for addressing any claims that Your User-Accessible Content or your use or possession of Your User-Accessible Content on its own or in connection with the Services infringes any third party’s rights.  

We take no responsibility and assume no liability for any Customer Content that you or any other User or third-party posts, sends, or otherwise makes available through the Services. We do not have any obligation to prescreen, edit, remove or restrict access to your Customer Content.  We reserve the right to refuse to post or deliver, restrict or block access through our Services to your Customer Content, but we are not responsible for any failure or delay in restricting or blocking access to such material through our Services.  You shall be solely responsible for your Customer Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Services. Company does not warrant or make any representation regarding the legality, accuracy, quality or authenticity of content, information, services or products provided by any third party or the use of your Customer Content in connection with the Services. We are not obligated to backup any Customer Content and we reserve the right to delete your Customer Content from our Services at any time without notice.  You are encouraged to create and maintain backup copies of your Customer Content if you desire.

Disclaimer of Warranties and Limitation of Liability

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE SERVICES AT YOUR OWN RISK. THE SERVICES, THE COMPANY IP, INCLUDING THE SERVICES AND SOFTWARE UNDERLYING THE SERVICES, AND YOUR USER ACCESSIBLE CONTENT, ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND THE COMPANY AND ITS AFFILIATES, AGENTS, LICENSORS, CONTENT PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUPPLIERS, SHAREHOLDERS, REPRESENTATIVES, CONTRACTORS AND THEIR ASSIGNS (COLLECTIVELY, THE “RELATED PARTIES”) HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, QUIET ENJOYMENT, COMPLETENESS, RELIABILITY, SECURITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY, QUALITY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY OR THROUGH THE SERVICES AND THE TREATMENT OF ANY INFORMATION, CONTENT, MATERIAL OR DATA TRANSMITTED BY USERS THROUGH THE SERVICES.   THE COMPANY AND THE RELATED PARTIES DO NOT REPRESENT OR WARRANT THAT ACCESS TO ANY THIRD-PARTY PROVIDER, CUSTOMER CONTENT, INCLUDING YOUR USER-ACCESSIBLE CONTENT, AND/OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION OR DATA, OR THAT NO VIRUSES OR BUGS WILL BE TRANSMITTED ON OR THROUGH THE SERVICES OR THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NEITHER THE COMPANY NOR ANY OF THE RELATED PARTIES ARE RESPONSIBLE OR LIABLE FOR CONTENT POSTED BY THIRD PARTIES, ACTIONS OF ANY THIRD PARTY, OR FOR ANY DAMAGE TO, OR VIRUS THAT MAY INFECT, YOUR MOBILE DEVICE, COMPUTER EQUIPMENT OR OTHER PROPERTY, INCLUDING YOUR USER-ACCESSIBLE CONTENT.  YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER THE COMPANY NOR ITS RELATED PARTIES ARE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF USERS OR THIRD PARTIES.  COMPANY DOES NOT WARRANT THAT YOUR ACTIVITIES IN CONNECTION WITH OR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, COMPANY SPECIFICALLY DISCLAIMS SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW.  YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SERVICES, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACCESS AND ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.

YOU ACKNOWLEDGE THAT THE SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICES TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.ADDITIONALLY, IN NO EVENT WILL THE COMPANY OR ANY OF THE RELATED PARTIES BE LIABLE FOR PERSONAL INJURY OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR ANY OTHER SUCH DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE RESULTING FROM (1) THE USE OF, OR THE INABILITY TO USE OR ACCESS, THE SERVICES OR ANY CUSTOMER CONTENT, INCLUDING YOUR USER-ACCESSIBLE CONTENT; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ITEMS, OR WEB APPLICATIONS; (3) UNAUTHORIZED ACCESS TO, ALTERATION OF OR LACK OF ACCESS TO YOUR USER-ACCESSIBLE CONTENT; (4) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE SERVICES; OR (5) ANY OTHER MATTER RELATING TO THE SERVICES.  THESE LIMITATIONS WILL APPLY WHETHER OR NOT THE COMPANY OR ANY RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

YOU ACKNOWLEDGE THAT THE ABOVE DISCLAIMERS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. COMPANY WOULD NOT PROVIDE THE SERVICES OR ALLOW YOU TO ACCESS CUSTOMER CONTENT, INCLUDING YOUR USER-ACCESSIBLE CONTENT, THROUGH THE SERVICES ABSENT SUCH DISCLAIMERS. 

IN THE EVENT OF ANY LIABILITY, THE COMPANY AND THE RELATED PARTIES SHALL BE COLLECTIVELY LIABLE ONLY TO THE EXTENT OF DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $50.  THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. COMPANY WOULD NOT PROVIDE THE SERVICES TO YOU ABSENT SUCH LIMITATION.  

Indemnification

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY AND THE RELATED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR DEFAMATION, DISPARAGEMENT, PRIVACY, INTELLECTUAL PROPERTY INFRINGEMENT, AND CLAIMS THAT YOU HAVE FOUND SOMETHING YOU HAVE HEARD, VIEWED OR DOWNLOADED FROM THE SERVICES OR ANOTHER SERVICE, APPLICATION OR WEBSITE TO WHICH THE SERVICES ARE LINKED TO BE OBSCENE, OFFENSIVE, DEFAMATORY, OR INFRIGING UPON YOUR INTELLECTUAL PROPERTY RIGHTS) AND DAMAGES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) ARISING FROM OR RELATING TO ANY ALLEGATIONS REGARDING: (1) YOUR ACCESS OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES, YOUR CUSTOMER CONTENT, OR THE INFORMATION CONTAINED ON THE SERVICES OR OTHER SERVICES, APPLICATIONS OR WEBSITES TO WHICH THE SERVICES ARE LINKED OR WITH WHICH THE SERVICES ARE INTEGRATED; (2) THE COMPANY’S OR ANY THIRD PARTY’S USE OF YOUR USER-ACCESSIBLE CONTENT; (3) CUSTOMER CONTENT OR ANY THIRD-PARTY CONTENT OR OTHER DATA, INFORMATION OR MATERIAL POSTED, TRANSMITTED OR SHARED THROUGH YOUR PERSONAL ACCOUNT, EVEN IF NOT POSTED, TRANSMITTED OR SHARED  BY YOU; (4) ANY VIOLATION OF THIS AGREEMENT OR YOUR AGREEMENT WITH ANY THIRD-PARTY PROVIDER OR OTHER THIRD PARTY BY YOU; (5) YOUR USE OF THE SERVICES OR USE OF THE SERVICES BY ANY PERSON USING YOUR PERSONAL ACCOUNT; AND (6) YOUR USE OF YOUR CUSTOMER CONTENT, INCLUDING YOUR USER-ACCESSIBLE CONTENT, ANY THIRD-PARTY CONTENT, OR YOUR ACCESS TO ANY THIRD –PARTY PROVIDER THROUGH THE SERVICES.  Notwithstanding the foregoing, Company retains the exclusive right to defend, settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action (each, a “Claim”) which are brought against Company and in no event shall you settle any such Claim without the Company’s prior written approval.

Intended Audience/Disclaimer for Access Outside of the United States/Children Under 13

The Company makes no representation that materials on the Services are appropriate or available for use in locations outside of the United States and access to them from territories where their content or the Services are illegal is prohibited.   You may not use the Services or export the materials in violation of U.S. export laws and regulations.   If you access the Services from locations outside of the United States, you are responsible for compliance with all applicable laws, including all local laws.  Moreover, the Services are directed to adults in the United States and are not intended for children under the age of thirteen. See Privacy Policy. You may not use or otherwise export or re-export the Company IP, including the Services, except as permitted under this Agreement and as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. In particular, but without limitation, the Company IP may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

Commercial Items

The Services and Documentation 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

Privacy

We describe our current practices related to personally identifiable information collected through the Services in our Privacy Policy and we may update our policies and practices from time to time at our sole discretion.   To the extent that there are inconsistencies between this Agreement and the Privacy Policy, this Agreement shall govern.  

Modification or Suspension of the Services, Certain Aspects of the Services, and/or Your Personal Account; Blocked or Limited Services

The Company and its Third-Party Providers may at any time change, modify, discontinue, or suspend its operation of the Services, or any part thereof, including the integration of the Services with any Third-Party Provider, or it may disable or block your access to the Services or Your User-Accessible Content that you access through the Services, temporarily or permanently, for any reason or no reason, without notice to you and without any liability to you.  In addition, the volume of Your User-Accessible Content accessed through the Services may be limited at any time without notice for any or no reason and without liability.  Company may use technical measures to prevent over-usage, as determined in the Company’s sole discretion, and Company may stop or block your access to the Services after any usage limitations are exceeded.  In addition, the Company may suspend or terminate your Personal Account without any liability to you if any information provided by you in connection with the registration process is or becomes false or misleading and/or if your use of the Services violates the terms of this Agreement.  We also reserve the right to reclaim any username that you have created that violates this Agreement.

Severability of Agreement

If any provision of the Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties' intentions as reflected in that provision, and the remaining provisions contained in the Agreement shall continue in full force and effect.

Applicable Law

This Agreement and the resolution of any dispute related to this Agreement or the Services shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflicts of law.  Your use of the Services may also be subject to other local, state, national or international laws.

Dispute Resolution/Arbitration

Read this Section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from us. This Arbitration clause applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a consumer (“Consumer Claim” or collectively, “Consumer Claims”). The Arbitration clause shall apply, without limitation, to all Consumer Claims that arose or were asserted before or after your agreement to this Agreement.

If you are a new customer, you can reject and opt-out of this Arbitration clause within 30 days of accepting this Agreement by emailing us at accounts@day.ai with the name the company on your Personal Account and stating your intent to opt-out of the Arbitration clause. Note that opting out of this Arbitration clause does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.

For any Consumer Claim, you agree to first contact us at accounts@day.ai and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Consumer Claim after sixty (60) days, we each agree to resolve any Consumer Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted atwww.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and the Company agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and the Company agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration clause, including any claim that all or any part of this Arbitration clause is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.

Nothing contained herein shall be deemed as: preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, our rights in the Company IP or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis. 

If this Arbitration clause is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.

(c) Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND THE COMPANY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER DAY AI USERS. YOU AND THE COMPANY FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.

 Modifications to this Agreement

From time to time, in our sole discretion, we may make changes to this Agreement by updating this posting on our website and in other places we deem appropriate.  At such time, we will specify the effective date of the new version of the Agreement. Your continued use of the Services following the posting of a new version of the Agreement constitutes your acceptance of the new version of the Agreement, including all changes thereto.  

Entire Agreement

This Agreement and our Privacy Policy contain the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between us and you about the Services. Any definitions found in the Privacy Policy are hereby adopted. No additional terms, conditions, consent, waiver, alteration, or modification shall be binding unless in writing and signed by you and us. Acceptance of any order by Day AI is expressly limited to the terms and conditions of this Agreement. Any proposed additional or inconsistent terms or conditions, including those in or accompanying any proposal or purchase order furnished. By you or any other agreement or any other document issued by you in connection with the sale or delivery of the Services is deemed by Day AI to be a material change and is objected to and rejected by Day AI. Day AI’s acceptance of any orders will not constitute acceptance of any terms and conditions contained therein.

Copyright Policy

The Company may review your conduct and content for compliance with this Agreement and reserves the right to remove any violating content. The Company reserves the right to delete or disable content alleged to be infringing the intellectual property rights of others, and to terminate accounts of repeat infringers. We respond to notices of alleged copyright infringement if they comply with the law. Notwithstanding the foregoing, the Company does not control content hosted on third-party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third-party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.  

Force Majeure

The Company shall not be responsible for any delay or failure to perform resulting from causes outside of its reasonable control, including, but not limited to, acts of God, pandemics, epidemics, war, terrorism, riots, embargos, acts of civil or military authorities, fires, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

Beta Features

If we make beta access to some or all of the Services (the “Beta Services”) available to you (i) the Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind, except in respect of losses that cannot be legally limited or excluded under law, related to your use of the Beta Services. If we inform you of additional terms and conditions that apply to your use of the Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.

Consent to Electronic Communications

By using the Services, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Notice to California Residents

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

Contact Information

If you have any questions or concerns with respect to this Agreement or the Services you may contact the Company at accounts@day.ai.

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