Terms of Services

This Terms of Service, together with any applicable Product Specific Terms, (“Agreement”) is a legally binding contract between you and Big Sur AI, Inc., (“Big Sur AI,” “us,” “we,” or “our”) regarding your use of the Service (as defined below). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement. Other capitalized terms used herein have the meanings given in inline definitions, or in definitions set forth in Section 21. By placing an Order using online functionality Big Sur AI makes available through the Service, creating an Account, or otherwise accessing or using the Service, you hereby agree to be bound by this Agreement.

If the Service is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Service (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you and your and the entity’s rights and obligations with respect to aspects of the Service that you ordered pursuant to that Separate Agreement, which will at all times be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of the Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you, constitutes an Agreement by Big Sur AI and by you to be bound by this Agreement.

1. Services.
   • 1.1 Ordering Process. Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will include the specific Services ordered by Customer, including, as applicable, the purchased Services and the time period for which such Order applies.
   • 1.2 Access. To access the Service, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide Big Sur AI with information (such name, email address, or other contact information). Customer agrees that the information it provides to Big Sur AI is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Big Sur AI (“Log-in Credentials”), may access and use the Service. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Big Sur AI’s breach of this Agreement). Customer will promptly notify Big Sur AI if it becomes aware of any compromise of any Log-in Credentials. Big Sur AI may Process Log-in Credentials in connection with Big Sur AI’s provision of the Service or for Big Sur AI’s internal business purposes. Customer represents and warrants to Big Sur AI that: (a) it has not previously been suspended or removed from the Service; and (b) its registration and use of the Service is in compliance with all Laws.
   • 1.3 Permitted Use. During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Big Sur AI grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Documentation and Service in connection with Customer’s website, both solely for Customer’s business purposes.
   • 1.4 Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Big Sur AI); (e) modify or create derivative works of a Service or copy any element of a Service; (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; or (k) access or use a Service in a manner that violates any Law. Additionally, Customer must not use a Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Big Sur AI is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Big Sur AI has no liability for Prohibited Data or use of a Service for High Risk Activities. In addition to the foregoing, Subscription plans are subject to applicable usage limitations as set forth in the plan description, and Customer agrees to abide by any and all such limitations. Without limiting the generality of the foregoing, with respect to Services offered under Subscription plans that have consumption based parameters (i) the Service may enable usage beyond such limitations, and any such excess usage will be charged as overage based on Big Sur AI’s standard overage rated, and (ii) certain elements of such plans which are offered under an “unlimited” basis, or which are not otherwise subject to any express limitation may in fact be subject to technical limitations such that Big Sur AI’s service is unable to support usage beyond such a point, in which case a customized plan may be required.
   • 1.5 Fair Use Policy. Your use of the Services, including any service feature described as "unlimited" in our marketing materials, plans, or offerings, is subject to the following fair use policy (“Fair Use Policy”):
     • a. Unlimited features and plans are designed to offer flexibility and convenience to support typical business activities. However, if your usage, in Big Sur AI’s absolute discretion, significantly exceeds reasonable and typical business levels or negatively impacts our ability to provide reliable and high-quality service to other customers, we reserve the right to review and/or limit your usage. We may reach out to discuss appropriate alternatives, including upgrading to customized plans or applying additional charges.
     • b. If we detect automated scripts, extraordinarily high traffic from a small number of users, or other behavior that suggests abuse or denial‑of‑service activity, we may throttle or suspend the affected account.
     • c. Our goal is to collaborate transparently and fairly, ensuring all customers receive consistent, reliable, and high-quality service
2. Support. We are under no obligation to provide support for the Services. However, Big Sur AI may offer support for certain subscription plans, as specified on the pricing page ("Support"). Such Support will not include services requested as a result of, or with respect to, the following, which will be billed to Customer at Big Sur AI’s then-current rates: (i) accident; (ii) improper installation by Customer or use of the Service; (iii) software or technology of any party other than Big Sur AI; or (iv) use of any version of the Service that was not provided by Big Sur AI.
3. Updates; Upgrades. Unless stated otherwise in an Order, Big Sur AI will make Updates to Services as Big Sur AI makes them available to its customers of the applicable Services generally. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Big Sur AI regarding future functionality or features of the Services. From time to time, Big Sur AI, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Big Sur AI to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order.
4. Use of Customer Data. Customer grants Big Sur AI the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services and Support; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.
   • 4.1 Usage Data; Aggregated Data. Big Sur AI may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide Support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
5. Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Big Sur AI to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
6. Suspension of Service. Big Sur AI may immediately suspend Customer’s access to any or all of the Services if: (a) Customer breaches Section 1.4 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Big Sur AI suspend a Service or otherwise may impose additional liability on the part of Big Sur AI; or (d) Customer’s actions risk harm to any of Big Sur AI’s other customers or the security, availability, or integrity of a Service or violates the Fair Use Policy. Where practicable, Big Sur AI will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Big Sur AI will restore Customer’s access to the Service(s).
7. Modifications to the Service. Big Sur AI may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that Big Sur AI will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Big Sur AI will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Order entered into or renewed after Big Sur AI's implementation thereof.
8. Customer Systems. Customer will provide and maintain any Customer Systems. If Customer is using the Service with a third-party e-commerce service (e.g., Shopify), Customer understands that its use of the Service is contingent upon Customer having and maintaining an account with the third-party e-commerce service during the Subscription Term. The Service will only be available on the platform (e.g., Shopify) that was agreed upon at the time of this agreement. If the Customer changes the platform later, the Service may not work. Customer’s right to use the Service is subject to and contingent upon Customer’s compliance with each limitation specified in the Order.
9. Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider terms and not this Agreement. You agree to review and comply with such terms at all times while using the Service. In the event of a conflict between this Agreement and the provider terms, the provider terms will apply. Big Sur AI does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Big Sur AI to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
10. Commercial Terms.
    • 10.1 Upgrades; Downgrades. You may be permitted to modify certain aspects of your Big Sur AI account type, specifically to upgrade or downgrade your plan limits, consumption levels, or other plan features. To initiate an upgrade or downgrade, you must initiate the process through your customer portal or email us at support@bigsur.ai. Any upgrade will become effective immediately upon agreement. The prorated fees for the upgraded account will be billed immediately and will cover the remainder of your existing Subscription Term. Downgrades will take effect at the end of your existing Subscription Term. Please be aware that downgrading may result in a loss of content, features, or capacity that were available under your previous license. Big Sur AI bears no responsibility for any such losses incurred as a result of downgrading your account.
    • 10.2 Subscription Term Renewal. Each Subscription Term will automatically renew for successive terms equal in length to the Subscription Term. Customer may cancel the Service by providing at least 30 calendar days’ notice to Big Sur AI if canceling by email, or at any time by canceling through the customer portal (if available based on your service plan). YOUR CANCELLATION MUST BE RECEIVED IN ACCORDANCE WITH THE TIME REQUIRED IN THE PRECEDING SENTENCE IN ORDER TO AVOID BEING CHARGED FOR THE NEXT SUBSCRIPTION PERIOD.
    • 10.3 Fees and Taxes. Fees for the Services are described in each Order (“Fees”). Payments are taken automatically via the payment method in your account each month or year unless you have the requisite notice to terminate your plan. Unless otherwise provided in the Order, all Fees will be paid in US dollars and are charged in advance in accordance with the pricing schedule. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as may be set out in this Agreement. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Big Sur AI’s income tax (“Taxes”). Fees are exclusive of all Taxes.
    • 10.4 Authorization. You authorize Big Sur AI to charge all sums for the orders that you make and any level of Service you select as described in this Agreement or published by Big Sur AI, including all applicable Taxes, to the payment method specified in your Account. If you pay any Fees with a credit card, then Big Sur AI may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that Big Sur AI may seek pre-authorization of the credit card account Customer provides to Big Sur AI for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. If your payment method is no longer valid at the time a renewal Fee is due, then Big Sur AI reserves the right to delete your Account and any information or Customer Data associated with your Account without any liability to you.
    • 10.5 Pricing. Big Sur AI reserves the right to determine pricing for the Services. We will use reasonable efforts to keep pricing information with respect to the Service that is published on Big Sur AI’s pricing page available at pricing page up to date, and Big Sur AI encourages Customers to check it regularly for current pricing information. Unless Big Sur AI and Customer otherwise agree in an Order executed by the parties, Big Sur AI may change the Fees for the Service (including any feature or functionality of the Service) and Big Sur AI will notify Customer of any such changes before they apply. Big Sur AI may make promotional offers with different features and different pricing to any of Big Sur AI’s other customers. These promotional offers, unless made to Customer, will not apply to your Order or this Agreement. Note that many of Big Sur AI’s Services are priced on a metered or consumption basis, with the applicable fees for the base plan charged up front. Usage in excess of plan limits will be billed at standard overage rates, and are charged at the end of the billing period based on the amount by which actual usage exceeded plan limits.
    • 10.6 Renewal Fees. Fees for renewal Subscription Terms are at Big Sur AI’s then-current Fees at the time of such renewal regardless of any discounted pricing in a prior Order or promotional offers previously extended to Customer.
11. Warranties and Disclaimers.
    • 11.1 Limited Warranty. Big Sur AI warrants to Customer that each of the Services will perform materially as described in its Documentation and Big Sur AI will not materially decrease the overall functionality of the Service during a Subscription Term (“Limited Warranty”).
    • 11.2 Warranty Remedy. If Big Sur AI breaches a Limited Warranty during the Subscription Term for the applicable Service and Customer makes a reasonably detailed warranty claim in the manner required by Big Sur AI within 30 days of discovering a breach of the Limited Warranty, then Big Sur AI will use reasonable efforts to correct the non-conformity. If Big Sur AI cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the non-conforming Service. Big Sur AI will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term. This Section sets forth Customer’s exclusive remedy and Big Sur AI’s entire liability for breach of the Limited Warranty. These warranties do not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
    • 11.3 Disclaimers. Except as expressly provided in Section 11.1 (Limited Warranty), the Services, Support and all other Big Sur AI services are provided “AS IS”. Big Sur AI, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Big Sur AI does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Big Sur AI will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Big Sur AI is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Big Sur AI’s control. The Service uses artificial intelligence and machine learning. Given the nature of machine learning, the content generated by the Services may be crude, damaging, dangerous, defamatory, disconcerting, discriminatory, false, harmful, illegal, inaccurate, infringing, misleading, offensive, or wrong. You acknowledge and agree that Big Sur AI will not be liable for any information or content generated by the Service. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
12. Term and Termination.
    • 12.1 Term. The term of this Agreement (the “Term”) starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
    • 12.2 Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminates. In addition, Big Sur AI may, in its sole discretion, terminate this Agreement or Customer’s Account on the Service, or suspend or terminate Customer’s or its Users’ access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination. Customer may terminate your Account and this Agreement at any time by emailing us at support@bigsur.ai.
    • 12.3 Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and Big Sur AI’s obligations to provide the Services and Support described in the Order will cease. During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Services, including from Third-Party Platforms from the applicable Service using the export features described in the applicable Documentation. After that 30 day period, Big Sur AI will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 14, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
    • 12.4 Survival. These Sections survive expiration or termination of this Agreement: 1.4 (Restrictions), 4.1 (Usage Data; Aggregated Data), 5 (Customer Obligations), 10.3 (Fees and Taxes), 11.3 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 15 (Limitations of Liability), 16 (Indemnification), 17 (Confidentiality), 17.5 (Required Disclosures), 20 (General Terms), and Section 21 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
13. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data provided to Big Sur AI. Except for Customer’s use rights in this Agreement, Big Sur AI and its licensors retain all intellectual property rights and other rights in the Services, any deliverables, Documentation, Usage Data, and Big Sur AI technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Big Sur AI. If Customer provides Big Sur AI with feedback or suggestions regarding the Services or other Big Sur AI offerings, Big Sur AI may use the feedback or suggestions without restriction or obligation.
14. Trials and Betas. If Customer or its Users receive access to or use of Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Big Sur AI (not to exceed thirty 30 days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Service and, subject to the remainder of this Section 14, all provisions of this Agreement relating to the Service will apply to these Trials and Betas. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Big Sur AI may never release, and their features and performance information are deemed to be Big Sur AI’s Confidential Information. Big Sur AI may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its Users’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BIG SUR AI PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.
15. Limitations of Liability.
    • 15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BIG SUR AI BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIG SUR AI HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
    • 15.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF BIG SUR AI TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BIG SUR AI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) $100 USD.
    • 15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Indemnification. Customer will defend Big Sur AI from and against any third-party claim to the extent resulting from Customer Data, Customer’s use of the Service, or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold Big Sur AI harmless against any damages and costs awarded against Big Sur AI (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
17. Confidentiality.
    • 17.1 Definition. “Confidential Information” means information disclosed to the Customer (“Recipient”) under this Agreement that is designated by Big Sur AI (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Big Sur AI’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services.
    • 17.2 Obligations. Recipient will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 17 and they are bound to confidentiality obligations no less protective than this Section 17.
    • 17.3 Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
    • 17.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Big Sur AI may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 17.
    • 17.5 Required Disclosures. Nothing in this Agreement prohibits Customer from making disclosures if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies Big Sur AI in advance and cooperates in any effort to obtain confidential treatment.
18. Modifications. Big Sur AI may modify this Agreement from time to time with prior written notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless Big Sur AI indicates an earlier effective date, in which case such change will become effective on the earlier of use of the applicable Service with actual notice of the change, or the effective date indicated in the notice. If Big Sur AI requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Big Sur AI, in which case Big Sur AI will provide Customer a refund of any pre-paid Fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify Big Sur AI of its objections within 30 days after Big Sur AI’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Service constitutes its acceptance of the modifications. Big Sur AI may require Customer to click to accept the modified Agreement. For the avoidance of doubt, modifications to this Agreement apply on a going forward basis, and disputes between us will be resolved in accordance with the version of this Agreement in effect at the time the dispute arose.
19. Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Big Sur AI may include Customer and its trademarks on Big Sur AI’s website and in customer lists and promotional materials but will cease further use at Customer’s written request.
20. General Terms.
    • 20.1 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that Big Sur AI may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
    • 20.2 Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.
    • 20.3 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
    • 20.4 Additional Terms. Customer’s use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Big Sur AI may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
    • 20.5 Contact Information. The Service is offered by Big Sur AI Inc., located at 1852 Limetree Ln, Mountain View CA 94040. You may contact us by sending correspondence to that address or by emailing us at support@bigsur.ai.
    • 20.6 Entire Agreement. This Agreement (which includes all Orders) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
    • 20.7 Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Big Sur AI. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Big Sur AI; any of these Customer documents are for administrative purposes only and have no legal effect.
    • 20.8 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
    • 20.9 Force Majeure. Big Sur AI will not be liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
    • 20.10 Subcontractors. Big Sur AI may use subcontractors and permit them to exercise Big Sur AI’s rights, but Big Sur AI remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
    • 20.11 Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
    • 20.12 Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
    • 20.13 Open Source. The Service may incorporate third-party open source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
    • 20.14 Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
    • 20.15 Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any exhibits, attachments, addenda, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement; (b) the terms of the exhibits, attachments, and addenda to this Agreement; and (c) the Documentation.
    • 20.16 Notice to California Residents. If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
    • 20.17 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
21. Definitions.
    • 21.1 “Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
    • 21.2 “Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Big Sur AI to provide the Services to Customer.
    • 21.3 “Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services.
    • 21.4 “Documentation” means the then-current version of Big Sur AI’s usage guidelines and standard technical documentation for the Services that Big Sur AI makes generally available to its customers that it provides the applicable Services to, the current version of which are in your customer portal at https://hub.bigsur.ai.
    • 21.5 “High Risk Activities” means activities where use or failure of a Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
    • 21.6 “Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data.
    • 21.7 “Order” means an order that is executed by Customer and Big Sur AI or a process Customer completes through the online order flow Big Sur AI provide each of which references this Agreement.
    • 21.8 “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
    • 21.9 “Privacy Policy” means the Privacy Policy
    • 21.10 “Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws, including personal data.
    • 21.11 “Service” or “Services” means the then-current version of Big Sur AI’s proprietary cloud service and other services that are identified in the relevant Order (but excluding Support). Each of the Services includes the software and Documentation for the Service. Specific Services may be subject to additional terms and conditions, which will be identified in the applicable Order (the “Product Specific Terms”).
    • 21.12 “Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.
    • 21.13 “Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Big Sur AI that Customer elects to integrate or enable for use with any Service.
    • 21.14 “Updates” means any updates, modifications, or bug fixes to the Services or Documentation that Big Sur AI provides free of additional charge to its customers using a Service.
    • 21.15 “Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Big Sur AI makes available to its customers for an additional fee.
    • 21.16 “Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data.
    • 21.17 “User” means any employee or contractor of Customer that Customer allows to use the Services on Customer’s behalf.