EMEA Enterprise Terms and Conditions

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 Labeling 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

(a) 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").

(b) 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 (where "control" means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations (whether through holding of voting rights, by contract or otherwise)).

2. License Grant and Restrictions

(a) Subject to all terms and conditions of this Agreement, Labelbox hereby grants to Customer a worldwide, non-transferable, non-sublicensable licence to access the Services (as defined by the applicable Order Form) only for Customer's internal purposes and 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).

(b) Customer will not use or make available the Services in a manner that may allow any person or entity other than its Authorized Users 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 has each been expressly authorized by Labelbox to access the Services.

(d) Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties Customer shall not:

reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof;
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;
copy, 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;
remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof;
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;
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
access the Services in order to build a similar or competitive product or service to Labelbox's or those of its third-party licensors.

(e) 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.

(f) Customer shall use the Services in compliance with all local, state, national and foreign laws, treaties, and regulations applicable to 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 shall not use the Services in a manner that violates any third party intellectual property, contractual, or other proprietary rights.

(g) 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.

(h) 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

(a) 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 Labeling Services (collectively, "Customer Data"), including all intellectual property rights therein.

(b) 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.

(c) Labelbox shall use commercially reasonable endeavours 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 wilful misconduct.

(d) 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.

(e) 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 Labeling Services. Customer further acknowledges and agrees that Labelbox may:

internally use and modify (but not disclose) Customer Data for the purposes of;
- providing the Services to Customer; and
- generating Aggregated Anonymous Data (as defined below); and
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 services

(a) The parties may agree to have Labelbox perform certain professional services for Customer (e.g., implementation, training, or installation services in connection with a Product, etc.) ("Professional Services"), by describing such Professional Services and any fees therefor on: (i) an Order Form; or (ii) a separate, mutually-executed Statement of Work which references this Agreement (each, a "SOW", which upon mutual execution, will be incorporated into and form a part of the Agreement).

(b) Upon payment of any applicable fees set forth in each Order Form or SOW (which shall be paid in accordance with Section 9), Labelbox agrees to use reasonable commercial endeavours to provide the Professional Services described therein for the term specified therein (if any). If Labelbox provides Professional Services beyond those agreed in an Order Form or SOW (including, without limitation, in excess of any hours estimate set forth therein), Customer will pay Labelbox at its then-current hourly rates for consultation.

5. Labeling services

(a) Upon payment of any applicable Labeling Services Fees (as defined by an applicable Order Form), Labelbox agrees to use reasonable commercial endeavours to provide agreed-upon Labeling Services (as defined by an applicable Order Form).

(b) If Labelbox cannot complete the Labeling Services within the estimated hours, or if Labelbox provides additional Labeling Services, Customer will pay Labelbox at its then-current hourly rates for such Labeling Services. Customer shall retain all right, title and interest in the results of the Labeling Services.

(c) In connection with Labelbox's provision of Labeling Services, Labelbox may use, exploit and rely upon its processes, workforce, inventions, patents, trade secrets, trademarks and copyrights and those of its third party licensors, 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 Labeling Services IP"). Customer acknowledges that as between the parties Labelbox retains all rights in the Labeling Services and Labelbox Labeling Services IP (and any improvements, modifications and derivative works thereto), including all copyright, patent and other intellectual property or proprietary rights therein. No title to or ownership of Labelbox Labeling 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 Labeling Services IP are granted to Customer. No rights or licenses are granted to Customer hereunder other than as expressly set forth herein.

6. Term
This Agreement shall commence upon the effective date set forth in the first Order Form ("Effective Date") and shall continue in full force and effect until all outstanding Order Forms have expired or been terminated in accordance herewith.

7. Publicity
Labelbox may use and display Customer's name and logo to promote Customer as a Labelbox customer.

8. 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).

9. Fees

(a) Customer shall pay Labelbox the fees and Labeling Services Fees set forth on each applicable Order Form in accordance with the terms and conditions set forth on such Order Form (the "Fees").

(b) If Customer use of the Services exceeds the Labeled Annotations set forth on the Order Form (if any), Customer will be invoiced at the end of the payment period for the excess usage over the Labeled Annotations, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Labelbox for additional services, such as integration fees or other consulting fees.

(c) All payments will be made in accordance with the Payment Schedule and the Payment Method set forth on the Order Form. If not otherwise specified, Fees and Labeling Services Fees will be invoiced after contract execution and will be due within ten (10) days of invoice.

(d) Any Fees or Labeling 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 Labeling Services Fees paid to Labelbox hereunder are non-refundable.

(e) Any amounts payable hereunder are exclusive of all sales taxes, value-added taxes (VAT), 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.

(f) Labelbox may change the Fees and Labeling Services Fees from time to time hereunder by providing forty-five (45) days prior notice to Customer; provided that any change in Fees and Labeling 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.

10. Termination

(a) Labelbox reserves the right to immediately suspend access to the Services and the Labeling Services upon Customer's breach of this Agreement until such breach is cured.

(b) Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so
where permitted by law, becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

(c) 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 9 - 16 (inclusive) shall survive termination of this Agreement.

11. Confidential Information

(a) 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:

that is in the rightful possession of the receiving Party free of any obligation of confidence prior to receipt from the disclosing Party;
that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the receiving Party;
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; or
that is or has been independently acquired or developed by the receiving Party.

(b) 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 to the extent permitted by applicable law.

(c) 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.

12. Intellectual Property

(a) 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.

(b) 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.

(c) Customer 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 Labeling Services.

13. Disclaimer

(a) Except as expressly set forth herein, the Services and Labeling 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 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.

(b) Subject to clause 14.1, Customer acknowledges and agrees that Labelbox is not responsible for:

the accuracy, reliability, timeliness or completeness of Customer Data or any other data or information accessed or provided through the services or the Labeling Services;
the results that may be obtained from use of the Services or the Labeling Services; or
the provision of Customer's or any third party's Services.

14. Limitation of Liability

(a) Neither party's liability:

for death or personal injury caused by its negligence;
for fraudulent misrepresentation or for any other fraudulent act or omission; or
for any other liability which may not lawfully be excluded or limited;

is excluded or limited by this agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.

(b) 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:

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);
loss or damage caused by any bugs, viruses, trojan horses, or the like (regardless of the source of origination); or
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.

(c) Notwithstanding the foregoing, these Section 14 limitations will not apply to a Party's indemnification obligations or breaches of confidentiality obligations or wilful misconduct (which may include, without limitation, infringement of intellectual property rights).

15. Indemnification

(a) Labelbox shall defend, indemnify and hold harmless Customer, its Affiliates and each of its and its Affiliates' employees, contractors, directors and representatives (each an "Indemnified Party") 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 use of the Services in accordance with this Agreement infringes any third party intellectual property or proprietary right.

(b) Customer shall defend, indemnify and hold harmless Labelbox, its Affiliates and each of its and its Affiliates' employees, contractors, directors, suppliers and representatives (each an "Indemnitee") from all Losses arising from or relating to:

use of Customer Data in accordance with this Agreement;
Customer's use of the Services or the Labeling Services other than in accordance with the terms of this Agreement;
any communication Customer sends via the Services;
Customer's violation or alleged violation of any law, rule, or regulation; and/or
Customer's infringement or alleged infringement of any third party intellectual property or proprietary right.

(c) The indemnifying party's ("Indemnitor") indemnification obligations hereunder shall be conditioned upon the indemnified party's ("Indemnitee") providing the Indemnitor with:

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);
the option to assume sole control over the defence and settlement of any claim (provided that the Indemnitee may participate in such defence and settlement at its own expense); and
reasonable information and assistance in connection with such defence and settlement (at the Indemnitor's expense).

(d) The obligations of Labelbox under this Section 15 do not apply with respect to the Services, the Labeling Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent:

not created or provided by Labelbox (including without limitation any Customer Data);
made in whole or in part in accordance to Customer specifications;
modified after delivery by Labelbox;
combined with other products, processes or materials not provided by Labelbox (where the alleged Losses arise from or relate to such combination);
Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or
Customer's use of the Services is not strictly in accordance herewith.

(e) The indemnification obligations set forth in this Section 15 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.

16. Miscellaneous

(a) Except for Customer's obligation to pay the Fees, no failure, delay 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 arises from any cause or causes beyond the reasonable control of such Party including, without limitation, fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; pandemic, epidemic, outbreak of disease or other global or national public health emergency (and the effects of any associated lockdown or social distancing measures); internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labour disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts (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 endeavours 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) Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Labelbox without the other party's prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms) without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

(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 England.

(f) Subject to Section 16.7, any dispute or difference between the parties arising out of or in connection with this agreement, its interpretation or subject-matter shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration ("LCIA"), which rules are deemed to be incorporated by reference into this Agreement. The number of arbitrators shall be one, unless the LCIA determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The place and seat of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English. The decision of the arbitrator shall be final and binding upon the parties. Any reference under this 16.6 shall be deemed to be a reference to arbitration within the meaning of the Arbitration Act 1996.

(g) Nothing in this Agreement shall prevent any party, in cases in which interim, injunctive or declaratory relief is required, or where the right to issue proceedings would be prejudiced by the impending expiration of any applicable limitation period, from commencing proceedings and pursuing claims before a court of competent jurisdiction.

(h) 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.

(i) 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.

(j) 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. Provided always that nothing in this Section 1.1 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this Agreement. Each party acknowledges that it has not been influenced to enter this Agreement by, and shall have no right or remedy (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this Agreement.

(k) This Agreement may be amended or modified only by a writing, signed by both parties, which specifically identifies this Agreement by name and date.

(l) 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.

(m) 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.

(n) No person who is not a party to this agreement shall have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.