Kaiya Terms of Service
Use of Kaiya is optional and at your own discretion and risk
YOUR PARTICIPATION IN THE TELLIUS KAIYA (“TELLIUS KAIYA”) IS GOVERNED BY THESE KAIYA PROGRAM TERMS OF SERVICE ("KAIYA TERMS"). THESE KAIYA TERMS ARE ENTERED INTO BETWEEN TELLIUS, INC. (“TELLIUS”) AND THE ENTITY PARTICIPATING IN THIS TELLIUS KAIYA (“CUSTOMER” OR “YOU(R)”). IF YOU ARE ENTERING INTO THESE KAIYA TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THESE KAIYA TERMS.
These terms govern your access and use of the Tellius Kaiya services or features that Tellius offers on a beta basis (the “Beta Services”). Beta Services are offered “AS-IS” for testing and evaluation purposes, and Beta Services have different privacy, security and compliance commitments. Notwithstanding anything to the contrary in any agreement you have with Tellius, Tellius makes no warranties or representations and has no indemnity or support obligations with respect to Beta Services.
Please consider the following when deciding if you would like to participate in the Tellius Kaiya and use the Beta Services.
Sensitive Personal Information
Customer’s use of the Tellius Kaiya is not covered by any existing business associate agreement with OpenAI, L.L.C. or its affiliates (collectively, “OpenAI”). Customer specifically agrees not to use the Kaiya to collect, store, process or transmit any sensitive personal information, and Customer shall be solely responsible for any sensitive personal information that is inadvertently submitted to the Kaiya. Tellius and its third party technology providers (including OpenAI) are not subject to any additional obligations that apply to sensitive personal information under these Kaiya Terms, regardless of whether you and Tellius have previously entered into a business associate agreement that applies to Tellius services to which you subscribe.
Processing by OpenAI
Customer acknowledges that by using Tellius Kaiya Services, you agree to OpenAI processing your data submitted to Tellius Kaiya Services in accordance with their data processing terms and security policy. If your use of the Tellius Kaiya Services will involve the processing of personal data, you must provide legally adequate privacy notices and obtain necessary consent for the processing of such data in accordance with applicable laws.
No Regional Data Hosting
The Beta Services involve integration with OpenAI, whose services are currently hosted in the U.S. Given such, no regional data hosting is offered by Tellius in connection with the use of the Beta Services, regardless of whether you and Tellius have previously agreed to regional data hosting terms that apply to Tellius services to which you subscribe.
Please read these Kaiya Terms carefully to make sure you understand the applicable terms, conditions and restrictions on Beta Services.
By clicking “I Agree,” you represent and warrant that you have read, understand, and agree to be bound by these Kaiya Terms (including the acknowledgements and disclaimers set forth above and RESOLUTION OF DISPUTES THROUGH BINDING ARBITRATION RATHER THAN IN COURT set forth below) and that you are so authorized to accept these Kaiya Terms on behalf of your Company. If you do not agree, or are not so authorized, do not click “I Agree” or proceed with using the Beta Services.
1. Beta Period and Usage
Customers may access and use the Beta Services on a non-exclusive basis in accordance with these Kaiya Terms for the specific period of time granted by Tellius (the “Beta Usage Period”). You agree to abide by any rate limits or other limitations directed by Tellius. Tellius may modify and/or discontinue any or all of the Beta Services at any time, in its sole discretion (with or without notice), and any or all of the Beta Services may not become generally available. The Beta Services are offered to Customers on a no-charge basis, but Tellius reserves the right to modify pricing for the Beta Services at any time during and after the duration of the Tellius Kaiya Beta. Applicable pricing will be made available to you.
2. Customer Requirements
(b) Input and Output. You may provide input to the Beta Services (“Input”) and receive output generated and returned by the Beta Services based on the Input (“Output”). As between the parties and to the extent permitted by applicable law, you are responsible for Input and Output, including for ensuring that it does not violate any applicable laws, policies, or these Kaiya Terms. You agree that Tellius and OpenAI may use Input and Output as necessary to provide and maintain the Beta Services, comply with applicable law, and enforce their respective policies. Tellius may analyze and research Input and Output in connection with assessing the performance of and enhancements to the Beta Services. Due to the nature of machine learning, Output may not be unique across users, and the Beta Services may generate the same or similar output. Responses that are requested by and generated for other users are not considered your Output.
3. Restrictions on Use
You may not (i) use the Beta Services in a way that infringes, misappropriates or violates any person’s rights (including, without limitation, copyright, trademark, service mark, trade secret, contract, privacy or publicity rights); (ii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Beta Services, or any portion thereof (except to the extent such restrictions are contrary to applicable law); (iii) use the Beta Services to develop foundation models or other large scale models that compete with Tellius or OpenAI; (iv) use any method to extract data from the Beta Services, including web scraping, web harvesting, or web data extraction methods; (v) represent that Output was human-generated when it is not; or (vii) attempt to bypass or circumvent any limitations on access or use of the Beta Services (e.g., rate limits, keys) or share your passwords or other login credentials.
4. Intellectual Property
Tellius and its third-party technology providers (including OpenAI), as applicable, own all legal rights, title, and interest in and to the Beta Services, including all intellectual property rights. Except for the rights expressly granted to you under these Kaiya Terms, no other rights or permissions to access or use any of the Beta Services is granted.
5. Feedback
By participating in the Tellius Kaiya Beta, you will have the ability to provide comments, feedback, ideas, suggestions, and/or other information regarding your use of the Beta Services (“Feedback”). By providing Feedback, you acknowledge that Tellius owns any Feedback, and Tellius may use all or part of your Feedback or any derivative thereof for any purpose, without any further remuneration, compensation, or credit to you. You hereby grant to Tellius, if for any reason it is further needed, a perpetual, non-revocable, royalty-free, worldwide license to use and exploit such Feedback. Tellius will not publish Feedback in a way that is attributable to you without your consent.
6. Termination
You may, in your sole discretion, discontinue your use of the Beta Services at any time.
Tellius may terminate these Kaiya Terms and/or discontinue your participation in the Tellius Kaiya and access to the Beta Services at any time and for any reason, with or without notice and without liability to you, including, without limitation, if you breach these Kaiya Terms, if you are no longer a customer in good standing with Tellius or if there are changes in relationships with third party technology providers.
Upon termination of these Kaiya Terms and/or your participation in the Tellius Kaiya Beta, you will stop using the Beta Services, and you will promptly return or, if instructed by Tellius, destroy all Confidential Information in your possession or control. The sections of these Terms, which by their nature should survive termination or expiration, will survive, including but not limited to Sections 5-10 and 12.
7. Disclaimer of Warranties
You acknowledge and agree that the beta services are provided on an “as is” and as available basis. To the extent permitted by applicable law, Tellius, its affiliates, subsidiaries, and licensors expressly disclaim any and all warranties of any kind, express or implied, including, but not limited to, merchantability, satisfactory quality, title, fitness for a particular purpose, non-infringement, quiet enjoyment and any warranties arising out of any course of dealing or usage of trade. Tellius makes no warranty that any of the Beta Services will meet your requirements or that the Beta Services will be uninterrupted, timely, or error-free, nor does Tellius make any warranty as to the results (including, without, limitation, any outputs) that may be obtained from the use of the Beta Services or the accuracy of any other information generated or obtained through the Beta Services. No information or advice, whether oral or written, obtained from tellius or through the use of the Beta Services shall create any warranty. Some jurisdictions do not allow the exclusion of certain warranties and conditions, so some of the above exclusions may not apply to you.
8. Limitation on Liability
In no event will Tellius, its affiliates, subsidiaries, or licensors be liable to you or any other third party for any indirect, special, incidental, exemplary, punitive, or consequential damages or for lost revenue, lost profits, lost data, loss of technology or goodwill or interruption to or loss of use of service arising out of or in connection with these Kaiya terms or company’s or any other third party’s use of the Beta Services (including, without limitation, use or reliance on any outputs), regardless of theory of liability, including contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not Tellius has been advised of the possibility of such loss or damages. The parties agree that the limitations on liability set forth herein are agreed allocations of risk and will apply notwithstanding the failure of essential purpose of any limited remedy. In any case, Tellius’s aggregate liability under these Kaiya terms will not exceed U.S. one hundred dollars (U.S. $100).
9. Indemnification
You agree to hold harmless and indemnify Tellius, its affiliates and subsidiaries, officers, directors, agents, and employees (collectively "Tellius Indemnified Parties") from and against any third-party claim arising from or related to relating to your use of the Beta Services (including Input and Output) and your breach of these Kaiya Terms or violation of applicable laws, rules and regulations, including any liability arising from or relating to such claims, losses, damages, judgments, settlements, costs and expenses (including attorneys' fees). In such a case, Tellius will provide you with written notice of such claim, suit or action.
10. Confidential Information
During and after your participation in the Tellius Kaiya, you shall not disclose any proprietary and/or non-public information of Tellius or third parties provided to you or to which you have access in connection with the Tellius Kaiya (“Confidential Information”), except as authorized in writing by Tellius or as required by law or court order, provided: (a) you will promptly notify Tellius in writing of the requirement for disclosure, and (b) disclose only that portion of the Confidential Information legally required. You shall promptly notify Tellius of any actual or suspected misuse or unauthorized disclosure of Confidential Information. Confidential Information includes, without limitation, these Kaiya Terms and any documents, designs, techniques, specifications, unreleased and experimental product features, product plans, existing or prospective business plans, existing or prospective research or test objectives and/or results, comments and discussions related to any such information provided by yourself or other applicable Tellius Kaiya program members.
You agree to (i) use Confidential Information only for the purpose of participating in the Tellius Kaiya; (ii) not disclose Confidential Information to any third parties; (iii) not copy or download any Confidential Information unless instructed to do so by Tellius; and (iv) use the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of Confidential Information as you would use to protect your own confidential information of like nature.
11. Changes to Kaiya Terms
We reserve the right to modify these Kaiya Terms from time to time. We will notify you of material revisions, for example, via an in-product notification or an email to the email associated with your account. Your continued participation in the Tellius Kaiya Beta after changes have become effective will be deemed as your acceptance of such changes. If any changes are not acceptable to you, you may discontinue your use of the Beta Services in accordance with Section 6 above.
12. Miscellaneous
(a) Assignment. These Kaiya Terms will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign these Kaiya Terms without the advance written consent of the other party, except that either party may assign these Kaiya Terms in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign these Kaiya Terms in derogation of the foregoing will be null and void.
(b) Severability. If any provision of these Kaiya Terms will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Kaiya Terms will otherwise remain in effect.
(c) Independent Contractors. These Kaiya Terms do not create a partnership, joint venture or agency relationship between you and Tellius. Tellius and you are independent contractors, and neither party will have the power to bind the other or to incur obligations on the other’s behalf without the other party’s prior written consent.
(d) Government End-Users. Elements of the Beta Services are commercial computer software. If the user or licensee of the Beta Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Beta Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of these Kaiya Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Beta Services were developed fully at private expense. All other use is prohibited.
(e) Notices. Any notices to Tellius must be sent to: Tellius Inc, 12700 Sunrise Valley Dr, #305 Reston, VA 20191, Attn: Legal Department, via first class or air mail or overnight courier, with a copy via email to contact@tellius.com and are deemed given upon receipt. Notice to you may be provided by sending email to the email address associated with your account or by posting an in-app message to your account, and is deemed received when sent (for email) or posted.
(f) Amendment; Waiver. Except as provided under “Changes to Kaiya Terms,” no amendment to these Kaiya Terms will be binding unless executed in writing by a duly authorized representative of Tellius and Customer. No waiver will be implied from conduct or failure to enforce or exercise rights under these Kaiya Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
(g) Export Control. In its use of the Beta Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer 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, (ii) Customer will not (and will not permit any of its users to) access or use the Beta Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Beta Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
(h) Injunctive Relief. You agree that any breach of these Kaiya Terms by you may result in irreparable harm to Tellius or its affiliates or subsidiaries, for which damages would be an inadequate remedy and therefore, in addition to its rights and remedies otherwise available at law, Tellius shall be entitled to seek equitable relief, including injunction, in the event of such breach.
(i) Entire Agreement. These Kaiya Terms and any policies incorporated in these Kaiya Terms contain the entire agreement between you and Tellius regarding the Tellius Kaiya and your access and use of the Beta Services and supersedes any prior or contemporaneous agreements, communications, or understandings between you and Tellius on the subject thereof. For the avoidance of doubt, as it relates to the Beta Services, these Kaiya Terms will control to the extent there is a conflict with any other agreement entered into between you and Tellius that apply to Tellius services to which you subscribe (i.e., the Tellius Subscription Terms of Service or Master Services Subscription Agreement).
(j) Governing Law; Dispute Resolution.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution”). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration.
ii) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL.
All aspects of the arbitration shall be treated as confidential, and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator’s award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
iii) FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN STATE OF VIRGINIA.
This Agreement is governed by the laws of the State of Virginia, without regard to its conflicts of law rules. Any legal proceeding arising out of or relating to this Agreement will be brought in the state and federal courts of Virginia. Each Party consents to the exclusive jurisdiction and venue of such courts
iv) THESE KAIYA TERMS MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND TELLIUS AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THESE KAIYA TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF SERVICES PROVIDED BY TELLIUS, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR
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