Labelbox documentation

Enterprise Terms and Conditions 20190502

Effective Date: 5/2/2019

The following terms and conditions (together with any additional terms on each applicable Order Form (defined below), the “Agreement”) govern all use of the Services (defined below) and Professional Annotation Services (defined below). The Services are owned and operated by Labelbox, Inc. (“Labelbox”). BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU (AND THE ENTITY OR COMPANY THAT YOU REPRESENT AS NAMED ON AN APPLICABLE ORDER FORM) (TOGETHER – “Customer”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. Each Party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.

1. Purchasing

Customer may purchase access to various Labelbox services by executing at least one order form (“Order Form”) that references and incorporates this Agreement and sets forth the Labelbox services to be provided to Customer (“Services”). Customer’s Affiliates may also purchase access to Services by mutually executing an Order Form with Labelbox; provided that Customer shall remain responsible for its Affiliates compliance with all of the terms and conditions of this Agreement. An “Affiliate” of Customer is an entity that is controlled, controlled by, or is under common control with Customer.

2. License Grant and Restrictions

Subject to all terms and conditions of this Agreement, Labelbox hereby grants to Customer a worldwide, non-transferable, non-sublicensable license to access the Services (as defined by an applicable Order Form) only for Customer’s internal purposes as limited by each applicable Order Form. Subject to the foregoing limitations, Customer may allow access to the Services to its Authorized Users (defined below). Customer will not use or make available the Services in a manner that may allow any person or entity other than its Authorized User to access or use the Services or otherwise permit unauthorized access to the Services. An “Authorized User” is any employee or contractor of Customer, or mutually-agreed-to end-user of Customer who have each been expressly authorized by Labelbox to access the Services. Customer shall be fully responsible for each Authorized User’s use of the Services. Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) disassemble, decompile, reverse engineer, or translate any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (iv) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (v) interfere with, modify, disrupt or disable features or functionality of the Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Services; (vi) provide use of the Services on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device; or (vii) access the Services in order to build a similar or competitive product or service to Labelbox’s third party licensors and data Labelbox’s products. Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties, and regulations in connection with Customer’s use of the Services, including without limitation those laws related to data privacy, patient privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights. Access to the Services may also require Customer to obtain certain hardware or install certain software applications (collectively, “Third Party Products”). Third Party Products are not under Labelbox’s control and Customer hereby acknowledges that Labelbox is not responsible or liable for the operation, content, functions, accuracy, legality, appropriateness, or any other aspect of such Third Party Products. Any purchase or use of Third Party Products may be subject to additional terms of the applicable third-party provider (“Third Party Terms”). Customer shall comply with all Third Party Terms and shall indemnify and hold Labelbox harmless from all damages, costs, settlements, attorneys’ fees, and expenses arising from or related to Customer’s breach of any Third Party Terms. Any provision by Labelbox of Third Party Products, and any exchange of data between Customer and any third-party provider of a Third Party Product, is solely between Customer and the applicable third-party provider.

3. Customer Data

As between the parties, Customer shall retain all right, title and interest in and to the data, information, and other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services and Professional Annotation Services (collectively, “Customer Data”), including all intellectual property rights therein. Customer, not Labelbox, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Labelbox shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Labelbox is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Labelbox’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Notwithstanding anything to the contrary, Customer hereby authorizes Labelbox to display, share, transfer, and otherwise disclose Customer Data for the purposes of providing the Services and Professional Annotation Services. Customer further acknowledges and agrees that Labelbox may (i) internally use and modify (but not disclose) Customer Data for the purposes of (a) providing the Services to Customer and (b) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Labelbox’s business purposes (including without limitation, for purposes of improving, testing and operating Labelbox’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Labelbox in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. For clarity, Aggregated Anonymous Data shall not include any Customer Data that can be linked specifically to Customer in any way.

4. Professional Annotation Services.

Upon payment of any applicable Professional Annotation Services Fees (as defined by an applicable Order Form), Labelbox agrees to use reasonable commercial efforts to provide agreed-upon Professional Annotation Services (as defined by an applicable Order Form). If Labelbox cannot complete the Professional Annotation Services within the estimated hours, or if Labelbox provides additional Professional Annotation Services, Customer will pay Labelbox at its then-current hourly rates for such Professional Annotation Services. Customer shall retain all right, title, and interest in the results of the Professional Annotation Services.

In connection with Labelbox’s provision of Professional Annotation Services, Labelbox will use, exploit and rely upon its processes, workforce, inventions, patents, trade secrets, trademarks, and copyrights, including ideas, concepts, and know-how, developed or obtained by us or for us either prior to or during the term of this Agreement (collectively, “Labelbox Professional Annotation Services IP”). Customer acknowledges that Labelbox retains all rights in the Professional Annotation Services and Labelbox Professional Annotation Services IP (and any improvements thereto), including all copyright, patent, and other intellectual property or proprietary rights therein. No title to or ownership of Labelbox Professional Annotation Services IP (including any derivative works) or any associated intellectual property or proprietary rights are transferred to Customer by this Agreement, and no licenses to any Labelbox Professional Annotation Services IP are granted to Customer. No rights or licenses are granted to Customer hereunder other than as expressly set forth herein.

4. Term

This Agreement shall commence upon the Effective Date and shall continue in full force and effect until all outstanding Order Forms have expired or been terminated in accordance herewith.

5. Publicity

Labelbox may use Customer’s name and logo to promote Customer as a Labelbox customer.

6. Support

Labelbox may from time to time at its sole discretion modify, update, upgrade or extend the Services (including, without limitation, for the purposes of adding features and functionality or enhancing security or usability).

7. Fees

Customer shall pay Labelbox the Fees and Professional Annotation Services Fees set forth on each applicable Order Form in accordance with the terms and conditions set forth on such Order Form. If not otherwise specified, Fees and Professional Annotation Services Fees will be invoiced after contract execution and will be due within ten (10) days of invoice. Any Fees or Professional Annotation Services Fees past due hereunder shall bear interest at a rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law). Except where stated otherwise, all Fees and Professional Annotation Services Fees paid to Labelbox hereunder are non-refundable. Any amounts payable hereunder are exclusive of all sales taxes, value-added taxes, duties, use taxes, withholdings, and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Labelbox’s net income) unless Customer provides to Labelbox a valid tax-exempt certificate. Labelbox may change the Fees and Professional Annotation Services Fees from time to time hereunder by providing forty-five (45) days’ prior notice to Customer; provided that any change in Fees and Professional Annotation Services Fees with respect to a particular Order Form shall not go into effect until the commencement of the next Renewal Term of such Order Form.

8. Termination

Labelbox reserves the right to immediately suspend access to the Services and the Professional Annotation Services upon Customer’s violation of this Agreement until such violation is cured. Without limiting the foregoing, either Party may terminate this Agreement or an applicable Order Form by written notice to the other Party in the event that such other Party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Upon termination of the Agreement or an Order Form, the rights and licenses granted to Customer hereunder and under any and all associated Order Forms shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials respecting the Services to Labelbox, including, without limitation, all Confidential Information (defined below) and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. The definitions and license restrictions contained herein and Sections 7-14 shall survive termination of this Agreement.

9. Confidential Information

Each Party shall keep confidential and not disclose to any other Party or use, except as required by this Agreement, non-public information obtained from the other Party (“Confidential Information”); provided, however, that the receiving Party shall not be prohibited from disclosing or using information: (i) that is in the rightful possession of the receiving Party free of any obligation of confidence prior to receipt from the disclosing Party; (ii) that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the receiving Party; (iii) that is or has been disclosed to the receiving Party by a third party who is not under (and to whom the receiving Party does not owe) an obligation of confidentiality with respect thereto; and (iv) that is or has been independently acquired or developed by the receiving Party. The receiving Party may disclose Confidential Information of the providing Party to the minimum extent use or disclosure is required by court order or as otherwise required by law, on condition that notice of such requirement by law for such disclosure is given to the disclosing Party prior to making any such use or disclosure. Each Party acknowledges that in the event of any breach or threatened breach of this Section by either Party, the other Party may suffer irreparable harm and not possess an adequate remedy at law. Accordingly, each Party shall have the right to seek injunctive or other equitable relief to restrain such breach or threatened breach. Notwithstanding anything to the contrary, nothing in this Agreement restricts Labelbox from compiling, using or disclosing Aggregated Anonymous Data.

10. Intellectual Property

Any underlying software, documentation, APIs, or other technology provided by Labelbox to Customer in connection with the Services is deemed to be a part of the Services and is subject to all the disclaimers, limitations, and restrictions herein relating to the Services. The Parties acknowledge and agree that, except for the use and access rights expressly granted to Customer herein, as between the Parties hereto, all rights in and to the Services shall be owned by Labelbox. Customer further acknowledges and agrees that it hereby grants to Labelbox a non-exclusive, royalty-free, perpetual, irrevocable license, to fully exploit any suggestions, ideas, enhancement requests, feedback, or recommendations Customer provides to Labelbox that relate to the Services and/or the Professional Annotation Services.

11. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND PROFESSIONAL ANNOTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER ACKNOWLEDGES AND AGREES THAT LABELBOX IS NOT RESPONSIBLE FOR (I) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF CUSTOMER DATA OR ANY OTHER DATA OR INFORMATION ACCESSED OR PROVIDED THROUGH THE SERVICES OR THE PROFESSIONAL ANNOTATION SERVICES, (II) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE PROFESSIONAL ANNOTATION SERVICES, OR (III) THE PROVISION OF CUSTOMER’S OR ANY THIRD PARTY’S SERVICES.

12. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID (OR PAYABLE) BY CUSTOMER TO LABELBOX HEREUNDER IN THE AGGREGATE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LABELBOX BE LIABLE FOR ANY PROVISION OF SERVICES OF ANY KIND BY CUSTOMER. Notwithstanding the foregoing, these Section 12 limitations will not apply to a Party’s indemnification obligations or breaches of confidentiality obligations, gross negligence or willful misconduct (which may include, without limitation, violations of intellectual property rights).

13. Indemnification

Labelbox shall defend, indemnify and hold harmless Customer, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), arising from or relating to any claim that the Services infringe, violate or misappropriate any third party intellectual property or proprietary right. Customer shall defend, indemnify and hold harmless Labelbox, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives from all Losses arising from or relating to Customer Data, Customer’s use of the Services and the Professional Annotation Services, any communication Customer sends via the Services, Customer’s alleged violation of any law, rule, or regulation, and/or Customer’s alleged infringement, violation or misappropriation of any third party intellectual property or proprietary right. The indemnifying party’s (“Indemnitor”) indemnification obligations hereunder shall be conditioned upon the indemnified party’s (“ Indemnitee”) providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Labelbox do not apply with respect to the Services, the Professional Annotation Services, or any information, technology, materials, or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Labelbox (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Labelbox, (iv) combined with other products, processes or materials not provided by Labelbox (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith. The indemnification obligations set forth in this Section 11 are Labelbox’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind.

14. Miscellaneous

a. No failure or omission by a Party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such Party that cannot be overcome through reasonable due diligence, such as strikes, riots, war, acts of terrorism, acts of God, invasion, fire, explosion, floods, and acts of government or governmental agencies or instrumentalities, (collectively, “Force Majeure Event”); provided that the Party seeking to delay its performance gives the other written notice of any such Force Majeure Event as soon as practicable after the discovery, and further provided that such Party uses its good faith efforts to overcome the Force Majeure Event (and, in any event, such Party will begin or resume performance as soon as practicable after the Force Majeure Event has abated).

b. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

c. This Agreement is not assignable, transferable or sub-licensable by Customer except with the Labelbox’s prior written consent. Labelbox may freely assign this Agreement.

d. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party shall have any authority of any kind to bind the other Party in any respect whatsoever.

e. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws’ provisions.

f. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc., and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided, however, that each Party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages, and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing Party will be that Party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. The parties hereby consent to the arbitration in the State of California in the county of San Francisco (in the English language). Without limiting the foregoing, for the purposes of injunctive relief, the federal and state courts sitting in San Francisco County, California, U.S.A. shall have proper and exclusive jurisdiction and venue related to the subject matter of this Agreement.

g. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Any waiver by any Party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.

h. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid to the person and address listed on an applicable Order Form.

i. Both Parties agree that 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 that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.

j. This Agreement may be amended or modified only by a writing, signed by both parties, which specifically identifies this Agreement by name and date. This Agreement and any amendments or Order Forms hereunder may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. The parties will be bound by signatures on this Agreement, any Order Form hereunder, and any amendments to this Agreement that are transmitted by mail, hand delivery, facsimile, and/or email to the other Party or, if applicable, counsel of record for the other Party. Such signatures will have the same binding effect as any original signature.

k. In the event of a conflict between these terms and conditions and any Order Form, exhibits or attachments hereto, the applicable Order Form shall control and prevail.

l. The Services are a "commercial item" as that term is defined at 48 C.F.R. 2.101. Any use, modification, derivative, reproduction, release, performance, display, disclosure, or distribution of the Services by any government entity is prohibited, except as expressly permitted by the terms hereunder. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. Contractor/manufacturer is Labelbox, Inc. with offices at 259 Clara Street #302, San Francisco, CA 94107.