Welcome to Sully.ai! We are on a mission to make building software simple, allowing you to build on top of your current software seamlessly. These Terms of Use govern your use our website and online platform owned by Odiggo Inc. dba Sully.ai (“Sully.ai,” “Company,” “We,” “Our”), which also includes all related widgets, tools, data, software, and other services provided by us (the “Services”).
This document, together with our Privacy Policy and any other terms specifically referred to therein, constitutes a legally binding agreement (the “Agreement”) between you and the Company in relation to your use of our Services. If you do not agree with these Terms, do not use Sully.ai.
Acceptance of Terms of Use
This Sully.ai Master Services Agreement (the “Agreement”) is entered into between Odiggo Inc. dba Sully.ai (“Sully.ai” or “Provider”) and the purchasing party (“Purchaser”). In this Agreement, Purchaser and Sully.ai are each referred to as a “party” and collectively as the “parties.” This Agreement includes and incorporates an Order Form, as well as the below Terms and Conditions.
Order Forms. All Order Forms signed by the parties will be governed by this Agreement and must include a description of the Service and details regarding any technical support services or Setup Services to be provided by Sully.ai to Purchaser.
Provision of Service.
Generally. Sully.ai will provide the Service in accordance with this Agreement. Purchaser may access and use the Service for its business purposes worldwide. Purchaser may extend its rights to its affiliates and to contractors acting on Purchaser’s or its affiliates’ behalf if Purchaser remains responsible for their compliance.
Restrictions. Purchaser will not: (a) use the Service except as permitted in this Agreement; (b) decompile, disassemble, or reverse engineer the underlying software to the Service (unless this restriction is not permitted under applicable law); (c) sell, rent, lease or use the Service for time sharing purposes; (d) remove any copyright or proprietary notices contained in the Service, or (e) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Sully.ai or authorized within the Service or Software).
Technical Support. Sully.ai will provide Purchaser, at no additional charge, technical support services for the Service.
Acceptance. Purchaser will accept or reject the Service in accordance with the acceptance criteria specified in the applicable Order Form or, if none is specified, then according to Purchaser’s reasonable satisfaction. If the Service does not meet the warranties or criteria of this Agreement or an Order Form, Purchaser may: (a) require Sully.ai to correct, at no cost to Purchaser, any defective or nonconforming item; or (b) correct the defective or nonconforming item itself and charge Sully.ai for the cost of the correction.
Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant: (a) Sully.ai any Intellectual Property Rights in Purchaser Data; or (b) Purchaser any Intellectual Property Rights in the Service.
Licenses. Sully.ai hereby grants to Purchaser and its affiliates during the Term a limited non-exclusive license to use the Software solely in connection with the Service and in accordance with this Agreement. This license is non-transferable, irrevocable, non-sublicensable, and will be fully paid up upon Purchaser’s payment of the fees.
Payment.
Amount. Purchaser will pay the fees specified in Order Forms signed by Purchaser.
Renewals. Purchaser is not obligated to enter into renewals. Unless otherwise specified on an Order Form, following the Initial Service Term or a Renewal Service Term, the subscription to the Service will automatically renew, unless either party gives the other written notice of termination at least thirty days prior to the expiration of the then-current Service term.
Invoices. Unless otherwise stated in an Order Form, Sully.ai will invoice Purchaser for the Service monthly in arrears, and Purchaser will pay Sully.ai within thirty business days of receipt of a correct and undisputed invoice. Unpaid invoices will accrue a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services.
Taxes. Any and all fees specified in this Agreement are exclusive of sales, excise, VAT, GST or similar taxes. Sully.ai agrees to invoice and Purchaser agrees to pay applicable sales, use, VAT, GST or similar taxes excluding taxes based solely on Sully.ai’s franchise, net income or similar taxes.
Tax Withholding. If Purchaser is required to withhold Withholding Taxes, Purchaser will do so and will make these payments. Any Withholding Taxes paid by Purchaser to the tax authority will be deducted from the amount due to Sully.ai, such that the amount paid to Sully.ai will be net of the Withholding Taxes. Upon Sully.ai’s request, Purchaser shall provide Sully.ai with a copy of the tax receipt or tax certificate for the Withholding Tax paid.
Confidential Information.
Use and Nondisclosure. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. The Receiving Party will hold Confidential Information in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. The Receiving Party agrees not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Receiving Party may share Confidential Information with its employees, directors, agents, or third-party contractors who need to know it and if they have agreed with either party in writing to terms at least as restrictive as those in this Agreement. Other than as allowed in the preceding sentence, the Receiving Party will not disclose or make Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing.
Required Disclosure. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order; and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure.
Return. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials.
Section 1833 Notice. Consistent with 18 U.S.C.§ 1833(b), the parties have the right to: (a) confidentially disclose trade secrets to federal, state and local Government Officials, or to any attorney, for the sole purpose of reporting or investigating a suspected violation of the law; and (b) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or to create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C.§ 1833(b).
Security.
General. During the term of this Agreement, Sully.ai will: (a) maintain appropriate, industry-standard technical and organizational measures to protect any data and information (the “Security Requirements”), including personal data, that it collects, accesses, processes or receives from Purchaser under the terms of this Agreement against unauthorized or unlawful transfer, processing or alteration and against accidental access, loss, damage, processing, use, transfer or destruction; and (b) comply with the Security Requirements.
Security Incidents.
Notification and Timing. In the event of a breach, Sully.ai will promptly notify Purchaser in writing of any security incident within seventy-two hours of Sully.ai becoming aware of the security incident. This notification is required even if Sully.ai has not conclusively established the nature or extent of the security incident. Sully.ai will not communicate with any third party regarding a security incident except as specified by Purchaser, or as required by law.
Required Information. Sully.ai will describe the known details of the incident, the status of Sully.ai’s investigation, and, if applicable, the potential number of persons affected. Sully.ai will be solely responsible for all costs associated with any security incident, which includes, if applicable, for notices to and credit monitoring for affected individuals
Data Transfer
Data Transfer. Sully.ai will: (a) comply with all laws relating to privacy and data protection; (b) process any Personal Data transferred to or collected by Sully.ai (i) only as a data processor, as these terms are defined in the EU General Data Protection Regulation (2016/679), on behalf of Purchaser, and (ii) for the limited and specific purpose of performing Sully.ai’s obligations under the Agreement; (c) comply with Purchaser’s instructions regarding processing of any Personal Data; and (d) comply with the Data Processing Addendum.
Term and Termination.
Term. This Agreement will remain in effect for the Term indicated in the Order Form, and as renewed on an automatic annual basis unless 30 days’ notice is given by either party.
Termination.
For Breach. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty days after written notice of breach. If Purchaser terminates this Agreement for Sully.ai’s breach, Sully.ai will promptly issue Purchaser a pro-rata refund to Purchaser of any prepaid but unused fees for the terminated period.
Of an Order Form. Unless an Order Form states otherwise, Purchaser may modify or terminate any Order Form if it provides notice within 90 days of the Start Date of the applicable Order Form. If Purchaser terminates an Order Form other than for Sully.ai’s breach, Purchaser will pay Sully.ai the fees due under the Order Form for Services accepted in accordance with the Order Form as of the effective date of termination.
Effect of Termination.
Generally. Unless otherwise specified in the termination notice, termination is effective immediately. Each party will return the other party’s Confidential Information or destroy it and certify its destruction. Termination of this Agreement terminates all outstanding Order Forms. Except where an exclusive remedy may be specified, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
Representations and Warranties
General. Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement.
By Purchaser. Purchaser represents, covenants, and warrants that Purchaser will use the Services only in compliance with Sully.ai’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Sully.ai has no obligation to monitor Purchaser’s use of the Services, Sully.ai may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
By Sully.ai. Sully.ai represents and warrants:
Performance Warranty. The Service will be of professional quality and performed consistently with generally accepted industry standards. Sully.ai will provide the Service in accordance with its generally published specifications, and any applicable Order Form. However, Sully.ai does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Sully.ai DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Compliance with Laws. The Service and Sully.ai’s performance hereunder will comply at all times with all applicable laws, regulations, including Data Protection Laws, and Purchaser’s Supplier Code of Conduct in its performance under the Agreement and provision of the Services. Sully.ai will comply with all applicable employment and occupational health and safety laws and regulations including those related to employment practices, performance management discipline, wages, unfair dismissal, and worker classification.
No Virus. Use of the Service and any Deliverables will not introduce into any Purchaser Systems any viruses, worms, time bombs, Trojan horses or other harmful, malicious, or destructive code.
No Additional Terms. Use of the Service and any Deliverables, including any installed software provided as part of the Service to Purchaser, shall not subject Purchaser to any third party terms or conditions.
No Infringement. To the best of Sully.ai’s knowledge, the Service, and Purchaser’s use thereof, does not and will not infringe, violate, or misappropriate the intellectual property rights of any third party.
Tax Compliance. Sully.ai will comply with all tax laws, including tax withholding requirements, social security taxes, federal, state and local income taxes, unemployment, workers’ compensation, and disability insurance, health care and other charges, and tax filings and payments on compensation received hereunder. Sully.ai will assume full and sole responsibility for Sully.ai’s compensation and expenses.
Limitation Liability & Warranties
Remedy of Defects. If Purchaser reports a breach of the Performance Warranty, Sully.ai will, at no charge, correct or repair the Service so that it conforms to the Performance Warranty. If Sully.ai does not cause the Service to operate as warranted within ten days after Purchaser’s notice, then Purchaser may terminate this Agreement and Sully.ai will refund to Purchaser any prepaid fees for the terminated period and for the period in which the Service did not meet the warranty.
Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY ORDER FORM, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
Mutual Indemnification. Each party will defend, indemnify, and hold harmless the other party, its officers, directors, employees, and affiliates from and against any and all damages, liabilities, and expenses (including settlement costs and reasonable attorneys’ fees) incurred by the party arising from any third party claims related to: (a) an allegation that the Service or any Deliverables infringes or misappropriates any third-party’s rights, including Intellectual Property Rights; (b) Sully.ai’s and its subcontractor’s or Purchaser’s breach of warranty, negligence, willful misconduct, fraud, misrepresentation, violation of law; (c) any obligation imposed by law on Purchaser to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with compensation received by Sully.ai under this Agreement; (d) any property damage, personal injury or death related to Sully.ai’s and its subcontractor’s performance of the Service; (e) Sully.ai’s failure to provide necessary notices and obtain necessary consents to grant the rights to Purchaser for Services and Deliverables hereunder; or (f) any claim or action that arises from an alleged violation of Sully.ai’s standard published policies then in effect or otherwise from Purchaser’s use of the Services.
Limitation of Liability.
Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER ARISING WHETHER OR NOT THAT PARTY WAS AWARE OF THE POSSIBILITY OF THOSE DAMAGES AND DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THIS AGREEMENT.
Limitation on Amount of Liability. NEITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT WILL EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO Sully.ai UNDER THIS AGREEMENT.
Disputes.
Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party. If a dispute is not resolved within thirty days of notice, Sully.ai or Purchaser may bring a formal proceeding.
Filing a Claim. Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized or inappropriate use of Confidential Information or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. For other claims, either party may bring a lawsuit in the federal or state courts of San Francisco County, California after following the information dispute notice process described above. Both Sully.ai and Purchaser consent to venue and personal jurisdiction there.
Miscellaneous.
Entire Agreement. This Agreement supersedes any prior agreements or understandings between the parties. This Agreement, including all Order Forms, constitutes the entire Agreement between the parties related to this subject matter, and any change to its terms must be in writing and signed by the parties. If the terms of this Agreement conflict with the terms of an Order Form, then the terms of this Agreement will control. This Agreement hereby incorporates by reference any and all attachments to this Agreement.
Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. EACH PARTY SUBMITS TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS IN SAN FRANCISCO, CALIFORNIA.
Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Assignment. Purchaser may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Sully.ai. Sully.ai may not assign this Agreement without providing notice to Purchaser, except Sully.ai may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
Force Majeure. Neither Purchaser nor Sully.ai will be liable for inadequate performance to the extent caused by a Force Majeure event, provided the delayed party gives the other party prompt notice of the event. If Sully.ai is unable to provide the Service for a period of thirty consecutive days as a result of a continuing Force Majeure event, Purchaser may cancel the Service and this Agreement at no penalty or cost.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Relationship of the Parties. The parties intended relationship is that of independent contractors, not legal partners or agents.
Counterparts. This Agreement may be executed in counterparts. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Third Party Websites and Services
The Service may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (the “Third-Party Services”). Additionally, you may enable or log in to the Service via various online Third-Party Services, such as Google and Apple. Your access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and you may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide Sully.ai with access to certain information that you have provided to third parties, including through such Third-Party Services, and Sully.ai will use, store, and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage and disclosure of information related to you and your use of such Third-Party Services within the Service, please see our Privacy Policy. Sully.ai has no control over and is not responsible for such Third-Party Services, including for the accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Services, or on the privacy practices of Third-Party Services. We encourage you to review the privacy policies of the third parties providing Third-Party Services prior to using such services. You, and not Sully.ai, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. Sully.ai enables these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Service are between you and the third party. Sully.ai will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Services.
Disclaimer of Warranties
Your Use Of The Service Is At Your Sole Risk. The Service Is Provided On An “As Is” And “As Available” Basis. The Sully.Ai Parties Expressly Disclaim All Warranties Of Any Kind, Whether Express, Implied Or Statutory, Including The Implied Warranties Of Merchantability, Fitness For A Particular Purpose, Title, And Non-Infringement.
The Sully.Ai Parties Make No Warranty That (A) The Service Will Meet Your Requirements; (B) The Service Will Be Uninterrupted, Timely, Secure, Or Error-Free; (C) The Results That May Be Obtained From The Use Of The Service Will Be Accurate Or Reliable; Or (D) The Quality Of Any Products, Services, Information, Or Other Material Purchased Or Obtained By You Through The Service Will Meet Your Expectations.
Limitation of Liability
You Expressly Understand And Agree That The Sully.Ai Parties Will Not Be Liable For Any Indirect, Incidental, Special, Consequential, Exemplary Damages, Or Damages For Loss Of Profits Including Damages For Loss Of Goodwill, Use, Or Data Or Other Intangible Losses (Even If The Sully.Ai Parties Have Been Advised Of The Possibility Of Such Damages), Whether Based On Contract, Tort, Negligence, Strict Liability, Or Otherwise, Resulting From: (A) The Use Or The Inability To Use The Service; (B) The Cost Of Procurement Of Substitute Goods And Services Resulting From Any Goods, Data, Information, Or Services Purchased Or Obtained Or Messages Received Or Transactions Entered Into Through Or From The Service; (C) Unauthorized Access To Or Alteration Of Your Transmissions Or Data; (D) Statements Or Conduct Of Any Third Party On The Service; Or (E) Any Other Matter Relating To The Service. In No Event Will The Sully.Ai Parties’ Total Liability To You For All Damages, Losses, Or Causes Of Action Exceed The Amount You Have Paid Sully.Ai In The Last Six (6) Months, Or, If Greater, One Hundred Dollars ($100).
Some Jurisdictions Do Not Allow The Disclaimer Or Exclusion Of Certain Warranties Or The Limitation Or Exclusion Of Liability For Incidental Or Consequential Damages. Accordingly, Some Of The Above Limitations Set Forth Above May Not Apply To You Or Be Enforceable With Respect To You. If You Are Dissatisfied With Any Portion Of The Service Or With These Terms Of Use, Your Sole And Exclusive Remedy Is To Discontinue Use Of The Service.
If You Are A User From New Jersey, The Foregoing Sections Titled “Indemnification”, “Disclaimer Of Warranties” And “Limitation Of Liability” Are Intended To Be Only As Broad As Is Permitted Under The Laws Of The State Of New Jersey. If Any Portion Of These Sections Is Held To Be Invalid Under The Laws Of The State Of New Jersey, The Invalidity Of Such Portion Will Not Affect The Validity Of The Remaining Portions Of The Applicable Sections.
Indemnification
To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Sully.ai, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Sully.ai Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Use, or your violation of any rights of another. Sully.ai will provide notice to you of any such claim, suit, or proceeding. Sully.ai reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Sully.ai’s defense of such matter. You may not settle or compromise any claim against the Sully.ai Parties without Sully.ai’s written consent.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Use as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Sully.ai, whether arising out of or relating to these Terms of Use (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Use, you and Sully.ai are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SULLY.AI AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SULLY.AI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
Sully.ai is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@sully.ai. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Sully.ai should be sent to 3120 Scott Blvd, Santa Clara, CA 95054 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Sully.ai and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Sully.ai may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Sully.ai or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Sully.ai is entitled.
Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Use as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Use and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Sully.ai and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Sully.ai agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Sully.ai or you under the AAA Rules, Sully.ai and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Sully.ai will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Sully.ai will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Use will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Use to the contrary, Sully.ai agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Sully.ai written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).
Termination
You agree that Sully.ai, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Sully.ai believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Sully.ai may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Use may be effected without prior notice, and acknowledge and agree that Sully.ai may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Sully.ai will not be liable to you or any third party for any termination of your access to the Service.
User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Sully.ai will have no liability or responsibility with respect thereto. Sully.ai reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
General
These Terms of Use (together with the terms incorporated by reference herein) constitute the entire agreement between you and Sully.ai governing your access and use of the Service, and supersede any prior agreements between you and Sully.ai with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content, or third-party software. These Terms of Use will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Sully.ai submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California. The failure of Sully.ai to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Use without the prior written consent of Sully.ai, but Sully.ai may assign or transfer these Terms of Use, in whole or in part, without restriction. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. As used in these Terms of Use, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Service. Sully.ai will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Sully.ai’s reasonable control.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at Sully.ai, 3120 Scott Blvd, Santa Clara, CA 95054, (650) 207-2164.
U.S. Government Restricted Rights
The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including the Software).
Questions? Concerns? Suggestions?
Please contact us at support@sully.ai or 3120 Scott Blvd, Santa Clara, CA 95054 to report any violations of these Terms of Use or to pose any questions regarding these Terms of Use or the Service.
