MODAL TERMS OF SERVICE
Last updated March 26th, 2024.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE
OFFERED BY MODAL LABS, INC. (“MODAL”). BY MUTUALLY
EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS
(EACH, A “SERVICE ORDER”) OR BY
ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU”
OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER
WITH ALL SERVICE DESCRIPTIONS AND/OR ORDER FORMS, IF ANY, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT
YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING
INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO
“CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO
THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING,
YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS
AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH
TERMS.
- SCOPE OF SERVICE AND RESTRICTIONS
- Access and Scope of Service. Subject to Customer’s
compliance with the terms and conditions of the Agreement, including
use in accordance with the applicable Service Description and, if
applicable, Modal’s receipt of the applicable Fees with respect to
the service specified in the corresponding Service Order (the “Service”), Modal will use commercially reasonable efforts to make the
Service available to Customer as set forth in this Agreement and the
Service Description and/or Service Order. Subject to Customer’s
compliance with the terms and conditions of the Agreement, Customer
may access and use the Service during the period specified in the
Service Description or Service Order, if applicable. Any such use of
the Service by Customer is solely for Customer’s internal business.
Notwithstanding the foregoing, Customer may use the Service with
respect to third party data, and such third-party data shall be
considered Customer Data. - Service Description. Customer’s use of the Services
shall at all times be limited and subject to the use limitations and
authorizations as specified within Modal’s published listing
currently located at the following URL
https://modal.com/pricing
for the Service (the “Service Description”). - Modifications. In the absence of any conflicting
terms defined within a committed Service Order, Customer
acknowledges and agrees that Modal may discontinue or terminate the
Service at any time and for any reason or modify the applicable
terms by publishing a notice on the Modal website or by other means
to the extent required by applicable law. - Trial Use. If Customer is accessing or making use
of the Service on a trial basis (the “Trial Use”)
as identified in the corresponding Service Order, or as presented to
Customer in connection with such trial basis or per an applicable
Service Description (the “Trial Use Limitations”),
Customer may use the Service consistent with the Trial Use
Limitations provided such use does not to exceed the Service levels
or related entitlements set forth in the Trial Use Limitations.
Customer acknowledges and agrees that the Trial Use is provided on
an “as-is” basis and the Trial Use is provided without any
indemnification, support, warranties or representation of any kind.
Further, Trial Use may be subject to certain additional
restrictions, limitations and differing terms all as specified in
the corresponding Trial Use Limitations. - Restrictions. Customer will use the Service only in
accordance with all applicable laws, including, but not limited to,
laws related to data (whether applicable within the United States,
the European Union, or otherwise). Customer agrees not to (and will
not allow any third party to): (i) remove or otherwise alter any
proprietary notices or labels from the Service or any portion
thereof; (ii) reverse engineer, decompile, disassemble, or otherwise
attempt to discover the underlying structure, ideas, or algorithms
of the Service or any software used to provide or make the Service
available; or (iii) rent, resell or otherwise allow any third-party
direct access to or use of the Service. - Ownership. Modal retains all right, title, and
interest in and to the Service, and any software, products, works or
other intellectual property created, used, provided or made
available by Modal under or in connection with the Service. Customer
may from time to time provide suggestions, comments or other
feedback to Modal with respect to the Service (“Feedback”). Customer hereby grants to Modal a nonexclusive, worldwide,
perpetual, irrevocable, transferable, sublicensable, royalty-free,
fully paid-up license to use and exploit any Feedback for any
purpose. Nothing in this Agreement will impair Modal’s right to
develop, acquire, license, market, promote or distribute products,
software or technologies that perform the same or similar functions
as, or otherwise compete with any products, software or technologies
that Customer may develop, produce, market, or distribute. - Software. Customer acknowledges and agrees that no
software code with respect to the Service will be provided to
Customer hereunder, and that certain software libraries and tools,
and updates thereto, are necessary to access and use the Service
(the “Modal Tools”). The Modal Tools should be
available at the following URL:
https://github.com/modal-labs/modal-client under applicable open source licensing terms. Customer agrees that
it is responsible for obtaining, installing and maintaining the Modal
Tools, and that Modal makes no representations, warranties or is otherwise
liable or obligated hereunder with respect to such Modal tools. - Customer Data. Customer is solely responsible for
Customer Data including, but not limited to: (a) compliance with all
applicable laws and regulations; and (b) any claims that Customer
Data infringes, misappropriates, or otherwise violates the rights of
any third party. Customer is responsible for the use of the Service
by any person to whom Customer has given access to the Service, even
if Customer did not authorize such use. Customer agrees and
acknowledges that Customer Data may be irretrievably deleted if
Customer’s account is terminated. - Use of Customer Data. Customer hereby grants to
Modal a limited license to use Customer Data as necessary to provide
the Service to Customer. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided,
uploaded, or submitted by Customer to the Service in the course of
using the Service. Customer shall retain all right, title and
interest in and to the Customer Data, including all intellectual
property rights therein. Notwithstanding anything to the contrary
herein, in no event will Modal sell or share any personal data to
the extent included within Customer Data (including but not limited
to any data inputs or outputs resulting from an authorized user’s
use of the Service) to any third party for marketing purposes. - Aggregated De-Identified Data. Notwithstanding
anything to the contrary, Modal may freely use Aggregated
De-identified Data for Modal’s business purposes (including without
limitation, for purposes of improving, testing, operating, promoting
and marketing Modal’s current and future products and services). “Aggregated De-identified Data” means data collected by Modal in connection with Customer’s use
of the Service, but only in aggregate, de-identified form which is
not linked specifically to Customer or any individual, excluding
Customer Data uploaded or submitted by Customer. - Personal Data. Customer represents and warrants
that it will not provide access, transfer or otherwise make
available to Modal any personally identifiable information or
personal data subject to applicable law or regulation (“Subject Data”). Customer acknowledges and agrees that Subject Data is not
necessary for Customer to use the Service. - Service Suspension. Modal may suspend Customer’s
access to or use of the Service as follows: (a) immediately if Modal
reasonably believes Customer’s use of the Service may pose a
security risk to or may adversely impact the Service; (b)
immediately if Modal reasonably believes Customer is or has used the
Service in connection with any of the following: cryptocurrency
mining or related blockchain related activities, denial of service
attacks, peer-to-peer file sharing, or as a general file-hosting or
media-serving platform; (c) immediately if Customer become
insolvent, has ceased to operate in the ordinary course, made an
assignment for the benefit of creditors, or becomes the subject of
any bankruptcy, reorganization, liquidation, dissolution or similar
proceeding; (d) following thirty (30) days written notice if
Customer is in breach of this Agreement or any Service Description
or Service Order (and has not cured such breach, if curable, within
the thirty (30) days of such notice); or (e) Customer has failed to
pay Modal the Fees with respect to the Service. If any amount owing
by Customer is thirty (30) or more days overdue (or 10 or more days
overdue in the case of invoices to be paid by credit card), Modal
may, without limiting any rights and remedies, accelerate Customer’s
unpaid fee obligations to become immediately due and payable, and
suspend the provision of the Service to Customer until the overdue
amounts are paid in full. Modal will give Customer at least ten (10)
days’ prior notice that its account is overdue before suspending
services to Customer due to overdue amounts. - Data Transfer. For clarity, Customer understands
and agrees that by using the Services, Customer is explicitly
consenting to the processing and transfer of Customer Data (which
may constitute Personal Data) within and to the United States,
Canada, the European Economic Area, Australia, and Asia.
- Access and Scope of Service. Subject to Customer’s
- FEES AND TAXES
- Fees. Customer shall pay to Modal the fees as set
forth in each applicable Service Order(s) or Service Description
(collectively, the “Fees”) and will provide accurate and updated
billing contact information. Minimum commitments as set forth in
Service Orders and Service Descriptions are (a) based on the Service
purchased and not actual usage, unless otherwise defined within a
Service Description; (b) non-cancelable; and (c) cannot be decreased
during the specified term set forth in an applicable Service Order.
Fees are not refundable. To the extent defined within a Service
Description, Customer may be auto-billed by Modal following each
billing period. - Invoicing Terms. Modal will invoice Customer either
monthly or according to the billing frequency stated in the applicable
Service Description or Service Order. Invoices are due pursuant to the
corresponding Service Description or Service Order. If any invoiced amount
is not received by Modal by the due date, then without limiting Modal’s
rights or remedies: (a) those charges may accrue late interest at the
rate of 1.5% of the outstanding balance per month, or the maximum rate
permitted by law, whichever is lower, and (b) Modal may condition future
renewals and Service Orders on shorter payment terms. If Modal is required
to initiate legal action due to nonpayment of fees, Customer shall bear
all costs resulting from the collection of such fees. - Taxes. Any and all payments made by Modal in
accordance with this Agreement are exclusive of any taxes that might
be assessed against Customer by any jurisdiction. Customer shall pay
or reimburse Modal for all value-added, sales, use, property and
similar taxes; all customs duties, import fees, stamp duties,
license fees and similar charges; and all other mandatory payments
to government agencies of whatever kind, except taxes imposed on the
net or gross income of Modal. All amounts payable to Modal under
this Agreement shall be without set-off and without deduction of any
taxes, levies, imposts, charges, withholdings and/or duties of any
nature which may be levied or imposed, including without limitation,
value added tax, customs duty and withholding tax.
- Fees. Customer shall pay to Modal the fees as set
- TERM AND TERMINATION
- Term. The term of this Agreement shall commence on
the Effective and unless terminated earlier according to this
Section 3, will end on the last day of the term specified in an
applicable Service Description or last Service Order (the “Term”). Each Service Description or Service Order will renew
automatically at the end of the applicable term unless either party
provides to the other advance written notice with respect to
non-renewal at least thirty (30) days prior to the end of the then
current term. - Termination. This Agreement and the applicable
Service Description or Service Orders hereunder may be terminated:
(a) by either party if the other has materially breached this
Agreement, within thirty (30) calendar days after written notice of
such breach to the other party if the breach is remediable or
immediately upon notice if the breach is not remediable; or (b) by
Modal upon written notice to Customer if Customer (i) has made or
attempted to make any assignment for the benefit of its creditors or
any compositions with creditors, (ii) has any action or proceedings
under any bankruptcy or insolvency laws taken by or against it which
have not been dismissed within sixty (60) days, (iii) has effected a
compulsory or voluntary liquidation or dissolution, or (iv) has
undergone the occurrence of any event analogous to any of the
foregoing under the law of any jurisdiction. - Effect of Termination. Upon any expiration or
termination of this Agreement, Customer shall (i) immediately cease
use of the Service, and (ii) return all Modal Confidential
Information and other materials and information provided by Modal.
Any termination or expiration shall not relieve Customer of its
obligation to pay all Fees accruing prior to termination. If the
Agreement is terminated due to Section 3.2 (a), Customer shall pay
to Modal all Fees set forth in the corresponding Service Order(s). - Survival. The following provisions will survive termination
of this Agreement: Sections 1.4 (Ownership), 3.3 (Effect of Termination),
Section 3.4 (Survival), Section 4 (Confidentiality), Section 7 (Limitation
of Liability), Section 8 (Miscellaneous).
- Term. The term of this Agreement shall commence on
- CONFIDENTIALITY
During the term of this Agreement, either party may provide the other
party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and
identified at the time of disclosure as “Confidential” or bearing a
similar legend, and all other information that the receiving party
reasonably should have known was the Confidential Information of the
disclosing party, shall be considered Confidential Information. This
Agreement is Confidential Information, and all pricing terms are Modal
Confidential Information. The receiving party shall maintain the
confidentiality of the Confidential Information and will not disclose
such information to any third party without the prior written consent
of the disclosing party. The receiving party will only use the
Confidential Information internally for the purposes contemplated
hereunder. The obligations in this Section shall not apply to any
information that: (a) is made generally available to the public
without breach of this Agreement, (b) is developed by the receiving
party independently from and without reference to the Confidential
Information, (c) is disclosed to the receiving party by a third party
without restriction, or (d) was in the receiving party’s lawful
possession prior to the disclosure and was not obtained by the
receiving party either directly or indirectly from the disclosing
party. The receiving party may disclose Confidential Information as
required by law or court order; provided that, the receiving party
provides the disclosing with prompt written notice thereof and uses
the receiving party’s best efforts to limit disclosure. At any time,
upon the disclosing party’s written request, the receiving party shall
return to the disclosing party all disclosing party’s Confidential
Information in its possession, including, without limitation, all
copies and extracts thereof. - INDEMNIFICATION
- Indemnification by Customer. Customer will defend,
indemnify, and hold Modal, its affiliates, suppliers and licensors
harmless and each of their respective officers, directors, employees
and representatives from and against any claims, damages, losses,
liabilities, costs, and expenses (including reasonable attorneys’
fees) arising out of or relating to any third party claim with
respect to: (a) Customer Data; (b) breach of this Agreement or
violation of applicable law by Customer; or (c) alleged infringement
or misappropriation of third-party’s intellectual property rights
resulting from Customer Data. - Indemnification by Modal. Modal will defend,
indemnify, and hold Customer harmless from and against any third
party claims, damages, losses, liabilities, costs, and expenses
(including reasonable attorneys’ fees) arising from claims by a
thirty party that Customer’s use of the Service directly infringes
or misappropriates a third party’s United States (or Berne
Convention signatory country) intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Modal
shall have no obligation to indemnify or reimburse Customer with
respect to any Infringement Claim to the extent arising from: (a)
the combination of any Customer Data with the Service; (b) the
combination of any products or services, other than those provided
by Modal to Customer under this Agreement, with the Service; or (c)
non-discretionary designs or specifications provided to Modal by
Customer that caused such Infringement Claim. Customer agrees to
reimburse Modal for any and all damages, losses, costs and expenses
incurred as a result of any of the foregoing actions. - Notice of Claim and Indemnity Procedure. In the
event of a claim for which a party seeks indemnity or reimbursement
under this Section 5 (each an “Indemnified Party”)
and as conditions of the indemnity, the Indemnified Party shall: (a)
notify the indemnifying party in writing as soon as practicable, but
in no event later than thirty (30) days after receipt of such claim,
together with such further information as is necessary for the
indemnifying party to evaluate such claim; and (b) the Indemnified
Party allows the indemnifying party to assume full control of the
defense of the claim, including retaining counsel of its own
choosing. Upon the assumption by the indemnifying party of the
defense of a claim with counsel of its choosing, the indemnifying
party will not be liable for the fees and expenses of additional
counsel retained by any Indemnified Party. The Indemnified Party
shall cooperate with the indemnifying party in the defense of any
such claim. Notwithstanding the foregoing provisions, the
indemnifying party shall have no obligation to indemnify or
reimburse for any losses, damages, costs, disbursements, expenses,
settlement liability of a claim or other sums paid by any
Indemnified Party voluntarily, and without the indemnifying party’s
prior written consent, to settle a claim. Subject to the maximum
liability set forth in Section 7, the provisions of this Section 5
constitute the entire understanding of the parties regarding each
party’s respective liability under this Section 5, including but not
limited to Infringement Claims (including related claims for breach
of warranty) and each party’s sole obligation to indemnify and
reimburse any Indemnified Party.
- Indemnification by Customer. Customer will defend,
- WARRANTY
- Warranty. The Service, when used by Customer in accordance
with the provisions of this Agreement and in compliance with the applicable
Documentation, will perform, in all material respects, the functions
described in the Documentation during the Term. - Exclusive Remedies. Customer shall report to Modal,
pursuant to the notice provision of this Agreement, any breach of the
warranties set forth in this Section 6. In the event of a breach of warranty
by Modal under this Agreement, Customer’s sole and exclusive remedy,
and Modal’s entire liability, shall be prompt correction of any material
non-conformance in order to minimize any material adverse effect on Customer’s
business. - Disclaimer of Warranty. Modal does not represent or
warrant that the operation of the Service (or any portion thereof)
will be uninterrupted or error free, or that the Service (or any
portion thereof) will operate in combination with other hardware,
software, systems or data not provided by Modal, except as expressly
specified in the applicable Documentation. CUSTOMER ACKNOWLEDGES
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6.1, MODAL MAKES
NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH
RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. MODAL IS
FURNISHING THE WARRANTIES SET FORTH IN THIS SECTION 6.1 IN LIEU OF,
AND MODAL HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW,
STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL
WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
- Warranty. The Service, when used by Customer in accordance
- LIMITATIONS OF LIABILITY
IN NO EVENT SHALL MODAL BE LIABLE FOR ANY, LOST PROFITS, BUSINESS
INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND
REGARDLESS OF THEORY OF LIABILITY. MODAL’S LIABILITY FOR ALL CLAIMS
ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE,
SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER
THE APPLICABLE SERVICE DESCRIPTION OR SERVICE ORDER DURING THE TWELVE
(12) MONTH PERIOD PRECEDING THE CLAIM. - MISCELLANEOUS
- Export Control. Customer hereby certifies that
Customer will comply with all current applicable export control
laws. Customer agrees to defend, indemnify and hold Modal harmless
from any liability for Customer’s violation of any applicable export
control laws. - Compliance with Laws. Customer shall comply with all
applicable laws and regulations in its use of any Service, including
without limitation the unlawful gathering or collecting, or assisting
in the gathering or collecting of information in violation of any privacy
laws or regulations. Customer shall, at its own expense, defend, indemnify
and hold harmless Modal from and against any and all claims, losses,
liabilities, damages, judgments, government or federal sanctions, costs
and expenses (including attorneys’ fees) incurred by Modal arising from
any claim or assertion by any third party of violation of privacy laws
or regulations by Customer or any of its agents, officers, directors
or employees. - Assignment. Neither party may transfer and assign
its rights and obligations under this Agreement without the prior
written consent of the other party. Notwithstanding the foregoing,
Modal may transfer and assign its rights under this Agreement
without consent from the other party in connection with a change in
control, acquisition or sale of all or substantially all of its
assets. - Force Majeure. Neither party shall be responsible
for failure or delay in performance by events out of their
reasonable control, including but not limited to, acts of God,
Internet outage, terrorism, war, fires, earthquakes and other
disasters (each a “Force Majeure”). Notwithstanding
the foregoing: (i) Customer shall be liable for payment obligations
for Service rendered; and (ii) if a Force Majeure continues for more
than thirty (30) days, either party may to terminate this agreement
upon written notice to the other party. - Notice. All notices between the parties shall be in
writing and shall be deemed to have been given if personally
delivered or sent by registered or certified mail (return receipt),
or by recognized courier service. - No Agency. Both parties agree that no agency,
partnership, joint venture, or employment is created as a result of
this Agreement. Customer does not have any authority of any kind to
bind Modal. - Governing Law. This Agreement shall be governed
exclusively by, and construed exclusively in accordance with, the
laws of the United States and the State of California, without
regard to its conflict of laws provisions. The federal courts of the
United States in the Northern District of California and the state
courts of the State of California shall have exclusive jurisdiction
to adjudicate any dispute arising out of or relating to this
Agreement. Each party hereby consents to the jurisdiction of such
courts and waives any right it may otherwise have to challenge the
appropriateness of such forums, whether on the basis of the doctrine
of forum non conveniens or otherwise. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply to
this Agreement or any purchase order issued under this Agreement. - Publicity. Customer hereby authorizes Modal to
identify Customer as a Modal Customer, and use Customer’s name, mark
and/or logo on Modal’s website and/or in Modal’s marketing materials
with respect to the same. In addition, Customer agrees to
participate in certain publicity activity, such as a case study,
customer quote, and joint press release all as further described in
the corresponding Service Order or Service Description. - Entire Agreement. This Agreement is the complete
and exclusive statement of the mutual understanding of the parties
and supersedes and cancels all previous written and oral agreements,
communications, and other understandings relating to the subject
matter of this Agreement, and all waivers and modifications must be
in a writing signed by both parties, except as otherwise provided
herein. Any term or provision of this Agreement held to be illegal
or unenforceable shall be, to the fullest extent possible,
interpreted so as to be construed as valid, but in any event the
validity or enforceability of the remainder hereof shall not be
affected. In the event of a conflict between this Agreement and the
applicable Service Description or Service Order document, the terms
of this Agreement shall control.
- Export Control. Customer hereby certifies that