Terms of Service
Welcome and thank you for your interest in Tavus Inc. (“Tavus”). These Terms of Service (this “Agreement”) describes the terms and conditions that apply to your use of the Tavus Platform. If your organization has already agreed to an Enterprise Master Services Agreement with Tavus, then the terms and conditions of that agreement and not this one govern your use of the Tavus Platform.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE TAVUS PLATFORM AND APPLIES TO ALL USERS ACCESSING OR USING THE TAVUS PLATFORM. BY ACCESSING OR USING THE TAVUS PLATFORM IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR COMPLETING AN ACCOUNT REGISTRATION PROCESS, CUSTOMER REPRESENTS THAT IT: (1) HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT; (2) IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TAVUS; (3) IS NOT BARRED FROM USING THE TAVUS PLATFORM UNDER THE LAWS OF THE UNITED STATES, ITS PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF ACCESSING OR USING THE TAVUS PLATFORM ON BEHALF OF AN ENTITY, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “CUSTOMER” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE TAVUS PLATFORM.
IF CUSTOMER SUBSCRIBES TO ANY FEATURE OR FUNCTIONALITY OF THE TAVUS PLATFORM FOR A TERM (THE “INITIAL TERM”), THEN CUSTOMER’S SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT TAVUS’ THEN-CURRENT FEES FOR SUCH FEATURES AND FUNCTIONALITY UNLESS CUSTOMER DECLINES TO RENEW ITS SUBSCRIPTION IN ACCORDANCE WITH SECTION 11.1 BELOW.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the API keys, passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access and use the Tavus Platform.
1.2 “APIs” means Tavus’ APIs, other developer services and associated software, which can be integrated into Customer’s websites and applications, enabling Customer’s end users to use Tavus’ technology.
1.3 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access and use the Tavus Platform pursuant to Customer’s rights under this Agreement.
1.4 “Customer” means the person or entity entering into this Agreement with Tavus and subscribing to the functionality of the Tavus Platform.
1.5 “Customer Avatar” means the replicated version of a person’s likeness generated by the Tavus Platform, which is based on Seed Files provided by Customer and used to create Media Files.
1.6 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Tavus Platform (including Seed Files, images, scripts, and any other content submitted through use of the APIs).
1.7 “Documentation” means the technical materials provided by Tavus to Customer in hard copy or electronic form describing the use and operation of the Tavus Platform.
1.8 “Error” means a reproducible failure of the Tavus Platform to substantially conform to the Documentation.
1.9 “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Tavus Platform.
1.10 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.11 “Media Files” means the output videos or files generated by Tavus using Customer Content and Customer Avatars and/or Stock Avatars, in accordance with Customer’s instructions and made available to Customer through the Tavus Platform.
1.12 “Seed Files” means the audios, videos, graphics, text or other data submitted by Customer, or on behalf of Customer, uploaded to the Tavus Platform and used to create Customer Avatars.
1.13 “Stock Avatar” means the replicated version of an actor’s likeness generated by Tavus using the Tavus Platform, which is based on video and other content licensed or owned by Tavus and used to create Media Files.
1.14 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Tavus as required for use of the Tavus Platform. The current requirements are described in the Documentation.
1.15 “Tavus Platform” means the software and functionality provided by Tavus to Customer under this Agreement, as set forth on Tavus’ website found at https://www.tavus.io (the “Website”), which includes but is not limited to, the creation of Customer Avatars and Media Files and the provision of Stock Avatars and APIs, each on a software-as-a-service basis.
2. ACCOUNTS
2.1 Creation. In order to access certain features of the Tavus Platform, Customer may be required to register an account on the Tavus Platform (an “Account”), or have a valid account on a third-party service through which Customer can connect to the Tavus Platform, as permitted by the Tavus Platform (each such account, a “Third-Party Account”).
2.2 Access Through a Third-Party Service. The Tavus Platform may allow Customer to link its Account with a Third-Party Account by allowing Tavus to access Customer’s Third-Party Account, as is permitted under the applicable terms and conditions that govern Customer’s use of each Third-Party Account. Customer represents it is entitled to disclose its Third-Party Account login information to Tavus and/or grant Tavus access to its Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third-Party Account and without obligating Tavus to pay any fees or making Tavus subject to any usage limitations imposed by such third
party service providers. CUSTOMER’S RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH CUSTOMER’S THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY CUSTOMER’S AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND TAVUS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT CUSTOMER HAS SET IN SUCH THIRD-PARTY ACCOUNTS.
2.3 Registration Data. In registering an account on the Tavus Platform, Customer shall: (i) provide true, accurate, current, and complete information about itself as prompted by the registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.4 Account. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that it has no ownership or other property interest in its Account, and Customer further acknowledges and agrees that all rights in and to its Account are and will forever be owned by and inure to the benefit of Tavus. Furthermore,
Customer is responsible for all activities that occur under its Account. Customer shall monitor its Account to restrict use by minors, and Customer will accept full responsibility for any unauthorized use of the Tavus Platform by minors. Customer may not share its Account or password with anyone, and Customer agrees to notify Tavus immediately of any unauthorized use of Customer’s password or any other breach of security. If Customer provides any information that is untrue, inaccurate, incomplete or not current, or Tavus has reasonable grounds to suspect that any information Customer provides is untrue, inaccurate, incomplete or not current, Tavus has the right to suspend or terminate Customer’s Account and refuse any and all current or future use of the Tavus Platform (or any portion thereof). Customer agrees not to create an Account using a false identity or information, or on behalf of someone other than Customer. Customer shall not have more than one Account at any given time. Tavus reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. Customer agrees not to create an Account or use the Tavus Platform if Customer has been previously removed by Tavus or banned from the Tavus Platform.
3. PROVISION OF THE TAVUS PLATFORM
3.1 Access. Subject to Customer’s choice of certain features and functionality and its payment of the applicable fees, as set forth on the Website (the “Fees”), Tavus will provide Customer with access to the Tavus Platform. On or as soon as reasonably practicable after Customer’s acceptance to this Agreement (the “Effective Date”), Tavus will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Tavus Platform in accordance with this Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Tavus Platform, and provide Tavus with prompt notification of any such unauthorized use known to Customer.
3.2 Support Services. Subject to the terms and conditions of this Agreement, Tavus will exercise commercially reasonable efforts to (a) provide support for the use of the Tavus Platform to Customer, and (b) keep the Tavus Platform operational and available to Customer, in each case in accordance with its standard policies and procedures.
3.3 Hosting. Tavus will, at its own expense, provide for the hosting of the Tavus Platform, provided that nothing herein will be construed to require Tavus to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Tavus Platform from the Internet.
3.4 Data Retention, Processing and Security Policies. Tavus provides the Tavus Platform in accordance with data retention and security policies, found at https://www.tavus.io/data-policies.
4. INTELLECTUAL PROPERTY
4.1 License Grant. Subject to the terms and conditions of this Agreement, Tavus grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5) license during the Term (as defined below), solely within the Supported Environment, to: (a) access and use the Tavus Platform for Customer’s internal business purposes, in accordance with the Documentation; (b) use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Tavus Platform; and (c) integrate and use the APIs made available by Tavus to Customer into Customer’s websites and applications, to be used by Customer’s end users. Customer may permit any Authorized Users to access and use the features and functions of the Tavus Platform as contemplated by this Agreement.
4.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Tavus Platform or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Tavus Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Tavus Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Tavus Platform, except as permitted by law; (e) interfere in any manner with the operation of the Tavus Platform or the hardware and network used to operate the Tavus Platform; (f) modify, copy or make derivative works based on any part of the Tavus Platform or Documentation; (g) access or use the Tavus Platform to build a similar or competitive product or service; (h) attempt to access the Tavus Platform through any unapproved interface; or (i) otherwise use the Tavus Platform or Documentation in any manner that exceeds the scope of use permitted under Section 4.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that
the Tavus Platform will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Tavus or its licensors on the Tavus Platform.
4.3 Ownership. The Tavus Platform and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Tavus and its licensors. All rights in and to the Tavus Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Tavus and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Tavus Platform, Documentation, or any part thereof.
4.4 Open Source Software. Certain items of software may be provided to Customer with the Tavus Platform and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 4.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Tavus makes such Open Source Software, and Tavus’ modifications to that Open Source Software, available by written request at the notice address specified below.
4.5 Feedback. Customer hereby grants to Tavus a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Tavus Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Tavus Platform. Tavus will not identify Customer as the source of any such feedback.
5. FEES AND EXPENSES; PAYMENTS
5.1 Fees. In consideration for the access rights granted to Customer by Tavus under this Agreement, Customer will pay to Tavus the Fees in the amounts set forth on Tavus’ pricing page found at this page. By providing Tavus and/or its Third-Party Service providers with Customer’s payment information, Customer agrees that Tavus and/or its Third-Party Service Providers are authorized to charge Customer for all Fees due and payable to Tavus hereunder and that no additional notice or consent is required. Tavus reserves the right to modify the Fees payable hereunder upon written notice to Customer at least thirty (30) days prior to the end of the then-current term. Tavus reserves the right (in addition to any other rights or remedies Tavus may have) to discontinue and suspend Customers’ and all Authorized Users’ access to the Tavus Platform if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5.2 Third-Party Service Provider. Tavus uses Stripe, Inc. and Orb, Inc. as its third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (each a “Third Party Service Provider”). If Customer makes a purchase on the Tavus Platform, Customer will be required to provide its payment details and any additional information required to complete its order directly to a Tavus Third Party Service Provider. Customer agrees to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consents and authorizes Tavus and Stripe to share any information and payment instructions Customer provides with one or more Third-Party Service Provider(s) to the minimum extent required to complete Customer’s transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Providers and Customer’s card issuer, and Tavus is not responsible if Customer’s card issuer declines to authorize payment for any reason. For Customer’s protection, Tavus’ Third-Party Service Providers use various fraud prevention protocols and industry standard verification systems to reduce fraud and Customer authorizes them, as applicable, to verify and authenticate Customer’s payment information. Customer’s card issuer may charge Customer an online handling fee or processing fee. Tavus is not responsible for this. In some jurisdictions, Tavus’ Third-Party Service Providers may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
5.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Tavus’ income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Tavus Platform, or the
licenses granted herein to Customer. Customer will make all payments of Fees to Tavus free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Tavus will be Customer’s sole responsibility, and Customer will provide Tavus with official receipts issued by the appropriate taxing authority, or such other evidence as Tavus may reasonably request, to establish that such taxes have been paid.
5.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
6. CUSTOMER CONTENT, CUSTOMER AVATARS AND MEDIA FILES
6.1 Customer Responsibility for Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content, Customer Avatars and Media Files. Customer represents and warrants that it has secured all third party licenses, consents and permissions needed to upload the Customer Content to the Tavus Platform to create Customer Avatars and Media Files, which includes without limitation, any licenses, consents or approvals necessary from Customer’s end users when submitting Seed Files to the Tavus Platform through APIs. Without limiting the foregoing, Customer shall ensure (and is solely responsible for ensuring) that all notices are given, and all rights, authorizations, and consents are obtained, as are required under applicable laws (including, without limitation, data privacy, data protection, or biometrics laws) or otherwise for Customer Content, Customer Avatars and Media Files and for Tavus to collect, use, share, retain and otherwise process the Customer Content, Customer Avatars and Media Files as contemplated by this Agreement, including, without limitation, as applicable: (i) explicit consent required to process biometric data under applicable laws; (ii) all notices to, and all consents and written releases executed by individuals in relation to the processing of their biometric information and biometric identifiers required under biometrics laws; and (iii) all consents to process personal information as required under applicable data privacy laws. When applicable, this includes securing the licenses and rights needed to include Customers’ end users’ trademarks, service marks and logos on Media Files, as requested by Customer or Customer’s end users.
6.2 Licenses and Ownership. As between Customer and Tavus, Customer owns any and all Customer Avatars and Media Files created through use of the Tavus Platform which are created pursuant to this Agreement. Customer grants Tavus a non-exclusive, worldwide, royalty-free and fully paid license to use the (a) Customer Content, Customer Avatars and Media Files to provide, train and improve the Tavus Platform; and (b) Customer’s or Customer’s end users’ trademarks, service marks, and logos as required by the Tavus Platform to create Media Files for Customer. Tavus may collect and use usage information about Customer’s use of the Tavus Platform in an aggregated and anonymized form to: (i) improve the Tavus Platform and Tavus’ related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Tavus Platform, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content and Media Files, and all worldwide Intellectual Property Rights in them, are the exclusive property of Customer or its end users as applicable. All rights in and to the Customer Content and Media Files not expressly granted to Tavus in this Agreement are reserved by Customer or its end users as applicable. Customer Avatars may only be used on the Tavus Platform.
6.3 Customer Warranty. Customer represents and warrants that any Customer Content provided, or Customer Avatars or Media Files created, will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Tavus’ systems or data; and (e) otherwise violate the rights of a third party, including without limitation any privacy or publicity rights. Tavus is not obligated to back up any Customer Content or Media Files; Customer is solely responsible for creating backup copies of any Customer Content or Media Files at Customer’s sole cost and expense. Customer agrees that any use of the Tavus Platform contrary to or in violation of the representations and warranties of Customer in this Section 6.3 constitutes unauthorized and improper use of the Tavus Platform. Any breach of this Section 6.3 gives Tavus the right to suspend Customer’s access to the Tavus Platform and terminate this Agreement immediately.
6.4 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and Media Files and will be responsible for all changes to and/or deletions of Customer Content or Media Files and the security of all API keys and other Access Protocols required in order the access the Tavus Platform. Customer will have the ability to download Media Files out of the Tavus Platform and is encouraged to make its own back-ups of the Media Files. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and Media Files.
7. WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. Tavus represents and warrants that it will provide the Tavus Platform and perform its obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Tavus in writing of the breach within thirty (30) days following defective performance of the Tavus Platform, specifying the breach in reasonable detail, Tavus will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the functionality on the Tavus Platform which gave rise to the breach or, at Tavus’ option, refund the fees paid by Customer for access to the Tavus Platform which gave rise to the breach. Tavus further warrants to Customer that the Tavus Platform will operate free from Errors during the Term, provided that such warranty will not apply to the extent such failures arise, in whole or in part, from (a) any use of the Tavus Platform not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Tavus Platform in combination with other products, equipment, software or data not supplied by Tavus; or (c) any modification of the Tavus Platform by any person other than Tavus or its authorized agents. Provided that Customer notifies Tavus in writing of any breach of the foregoing warranty during the Term, Tavus will, as Customer’s sole and exclusive remedy, provide the support described in Section 3.2.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TAVUS PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS,” AND TAVUS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. TAVUS DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE TAVUS PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
8. LIMITATION OF LIABILITY
8.1 Types of Damages. EXCEPT FOR BREACH OF EACH PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 9 AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. EXCEPT FOR BREACH OF EACH PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 9 AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE SUM OF ALL FEES PAID AND PAYABLE BY CUSTOMER TO TAVUS
DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL TAVUS’ LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. CONFIDENTIALITY
9.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or
with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Tavus Platform, Documentation, and all enhancements and improvements thereto will be considered Tavus’ Confidential Information.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Tavus). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10. INDEMNIFICATION
10.1 By Tavus. Tavus will defend at its expense any suit brought against Customer, and will pay any settlement Tavus makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Tavus Platform infringes such third party’s patents, copyrights or trade secret rights. If any portion of the Tavus Platform becomes, or in Tavus’ opinion is likely to become, the subject of a claim of infringement, Tavus may, at Tavus’ option: (a) procure for Customer the right to continue using the Tavus Platform; (b) replace the Tavus Platform with non-infringing software or services which do not materially impair the functionality of the Tavus Platform; (c) modify the Tavus Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Tavus Platform and Documentation. Notwithstanding the foregoing, Tavus will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the Tavus Platform not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Tavus Platform in combination with other products, equipment, software or data not supplied by Tavus; or (iii) any modification of the Tavus Platform by any person other than Tavus or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of Tavus, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2 By Customer. Customer will defend at its expense any suit brought against Tavus, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion; or (b) the Customer Content, Customer Avatars or Media Files. This Section 10.2 states the sole and exclusive remedy of Tavus and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or
suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11. TERM AND TERMINATION
11.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect for as long as Customer’s subscription to access to certain features and functionality of the Tavus Platform, on a limited time basis, (“Subscription”) remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”). If Customer elects to purchase a Subscription, Customer’s Subscription will continue and automatically renew at Tavus’ then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which Customer’s Subscription renews (i.e., weekly, monthly, annually, etc.) will be designated at the time Customer signs up for the Subscription. Customer may cancel its Subscription via its Account settings or by emailing Tavus with written notice of non-renewal at support@tavus.io prior to the expiration of the then-current subscription. Tavus may at any time decline to renew any Subscription, upon providing Customer with notice thereof.
11.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9; and (c) any amounts owed to Tavus under this Agreement will become immediately due and payable. Sections 1, 2, 4.2, 4.3, 4.5, 5, 7.2, 8, 9, 10, 11.2, 11.3, and 12 will survive expiration or termination of this Agreement for any reason.
11.4 Data Extraction and Deletion. Customer will be able to download Media Files during the Term of this Agreement. Tavus may, but is not required to, allow Customer to download Media Files after expiration of the Term. Customer may request that Tavus permanently delete any Customer Content, Customer Avatars or Media Files used by the Tavus Platform at any time by emailing support@tavus.io.
12. MISCELLANEOUS
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California, for any lawsuit filed there against Customer by Tavus arising from or related to this Agreement.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Tavus, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Tavus Platform and Documentation.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Customer’s relationship to Tavus is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Tavus.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Tavus, by emailing support@tavus.io and if to Customer by emailing the email address used by Customer when creating an Account to access and use the Tavus Platform. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Tavus.
