TOGAL.AI END USER SERVICE AGREEMENT
Last Updated February 20, 2024
IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU, AS EITHER AN INDIVIDUAL OR ACTING ON BEHALF OF A BUSINESS ENTITY (“CUSTOMER” OR “YOU” OR “YOUR”) AND TOGAL.AI INC. (“US”, “OUR”, “WE” OR “TOGAL.AI”), COLLECTIVELY THE “PARTIES”, GOVERNING YOUR SUBSCRIPTION TO THE SERVICE IDENTIFIED BELOW (“SERVICE”).
TOGAL.AI WILL PROVIDE YOU ACCESS TO THE SERVICE ON A SUBSCRIPTION BASIS ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”). IF YOU ACTIVATE OR OTHERWISE USE THE SERVICE, YOU AGREE TO BE BOUND BY ALL THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACTIVATE OR USE THE SERVICE.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT FOR A BUSINESS ENTITY AFFIRMS THAT THEY ARE AUTHORIZED BY THE BUSINESS ENTITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON ITS BEHALF.
TRIAL PERIOD SUBSCRIPTION: If accepting this Agreement for a trial subscription to the Service, the terms of this Agreement apply, provided, however, that the Service will cease to function at the expiration of your trial period.
If you have entered into a separate written agreement for the Services with us (an “Existing Agreement”), then these Terms only apply to you to the extent that they do not conflict with that Existing Agreement or to the extent that these Terms cover subject matter outside the scope of that Existing Agreement. If you have not entered into an Existing Agreement with us, then these Terms apply to you in their entirety.
In consideration of the mutual covenants and conditions contained herein, the Parties agree as follows:
1. BACKGROUND. Togal.ai has developed certain construction Software (defined below), to which it provides access as part of its Services (defined below). Customer wishes to enter into this Agreement for a subscription to the Services identified on an Order Form. Togal.ai desires to make those Services available to Customer subject to the terms of this Agreement.
2. DEFINITIONS. The capitalized terms listed below have the following meanings:
2.1 “Agreement” means, collectively, the terms of an applicable Order Form and the terms and conditions herein.
2.2 “Aggregate Content” means aggregate and/or anonymized Customer Content and/or Customer Data with respect to Customer or Authorized Users.
2.3 “Authorized User” means any individual who is authorized by virtue of such individual’s relationship to, or permissions from, Customer, to access and receive Customer Content/Customer Data and use the Services on Customer’s behalf pursuant to Customer’s rights under this Agreement.
2.4 “Customer Content” means any content, including construction data, uploaded to the Service, or provided by the Customer or an Authorized User to the Service in connection with the Services.
2.5 “Customer Data” means personally identifiable information provided by Customer to Togal.ai regarding natural persons.
2.6 “Documentation” means the online screen-share demonstration materials, marketing collateral, and other materials in written or electronic form provided to Customer by Togal.ai in connection with Customer’s subscription to the Services.
2.7 “Enhancements” means the following: minor modifications, revisions, and corresponding Documentation with respect to the Services, including the addition of enhancements or improved performance made available by Togal.ai to the Services; however, Enhancements do not include the addition of New Features not originally included as part of the Services described on a particular Order Form.
2.8 “Maintenance Modifications” means bug fixes, patches, modifications, or revisions to the Services that correct errors therein; however, Maintenance Modifications do not include New Features not originally included as part of the Services described on a particular Order Form.
2.9 “New Features” means those significant technological or service features and/or tools that Togal.ai develops over time, which are offered to Customers as additional features for a fee and are distinct from included Enhancements and Maintenance Modifications.
2.10 “Order Form” means an order form which specifies agreed-upon terms, including the term of the subscription, fee, and any other specific subscription information pertaining to the Services.
2.11 “Platform” means Togal.ai’s proprietary cloud-based software as service and artificial intelligence functionality.
2.12 “Services” means (1) Togal.ai’s proprietary Software offerings, and (2) any professional services that are specified on the Order Form.
2.13 “Site” means app.Togal.ai. and all associated Togal.ai websites.
2.14 “Software” means Togal.ai’s software programs and any associated user interfaces and related technology that Togal.ai uses to provide the Services, and that Togal.ai makes available pursuant to this Agreement, including any Enhancements and Maintenance Modifications thereto.
2.15 “Subscription Fee” means the agreed-upon subscription fee for the Services as stated on the Order Form.
2.16 “User Credentials” means unique User ID and Login Password for access to Services provided by Togal.ai.
3. PROVISION OF SERVICE/RESPONSIBILITIES.
3.1 Subscription Rights and Access. Togal.ai grants Customer the nonexclusive limited-time subscription and right to use the Services in accordance with this Agreement. Further, Togal.ai agrees that Customer may access and use, and permit each Authorized User to access and use, the Services for its intended purpose, in accordance with the specifications set forth in any Documentation and subject to the terms of this Agreement and the limits and/or other use restrictions specified on each Order Form. Subject to Customer’s payment of the fees set forth in the Order Form, Togal.ai shall provide to Customer and its Authorized Users access to the Services. Togal.ai shall provide the Customer and Authorized Users with (a) support for the Services as outlined in Exhibit A, and (b) access to Enhancements and Maintenance Modifications as they become available. Customer and its Authorized Users are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment, and Internet service necessary for the use of the Site and Services. All other rights not expressly granted in this agreement are reserved by Togal.ai. Togal.ai may from time to time make or issue Maintenance Modifications, Enhancements or New Features available to you under the terms and conditions of the Agreement. Maintenance Modifications, New Features and/or Enhancements made available to you (if any) will constitute a part of the Platform for purposes of the Agreement, however, note that we may offer New Features for an additional fee, which are subject to our then current, commercial pricing for the same.
3.2 Authorized User and User Credentials. If Customer is a business entity, Customer may permit its Authorized Users to access or use the Service for Customer internal business purposes only. Customer is responsible for any access or use of the Service by any Authorized User and shall not permit Customer’s account to be accessed by individuals who are not Authorized Users. Each named Authorized User must have a single unique User ID and Login password and keep their User Credential information strictly confidential and not share such information with any unauthorized person. You understand that, by providing access to your Authorized Users, including those authorized through the “Collaboration Feature” of the Services, you are providing Authorized Users with access to Customer Content and the UserID of Authorized Users on the Services.
3.3 Limitations. Customer shall be responsible for all activities that occur under Customer’s account and for all actions of Customer or its Authorized Users. Customer shall not, and shall not authorize or permit any Authorized User to directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to all or any portion of the Services (including, without limitation, the Platform), including any related or underlying tool, module, software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Services (including, without limitation, the Platform) or any Technology, in whole or in part; (iii) access and/or use the Services (including, without limitation, the Platform) or any Technology for timesharing or reselling purposes or otherwise for the benefit of a third party (other than expressly authorized by us); (iv) upload to or otherwise use the Services (including, without limitation, the Platform) or any Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use the Services (including, without limitation, the Platform) or any Technology to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses; (vi) interfere with or disrupt the integrity or performance of the Services (including, without limitation, the Platform) or any Technology (in whole or in part); (vii) attempt to gain unauthorized access to the Services (including, without limitation, the Platform), the Technology or any of their related systems or networks, or access or use the Services (including, without limitation, the Platform) or any Technology other than by an Authorized User through the use of his or her own then valid User Credentials; (viii) permit direct or indirect access to or use of the Services (including, without limitation, the Platform) or any Technology in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Services (including, without limitation, the Platform) (including any Technology); (x) access the Services (including, without limitation, the Platform) and/or the Technology (in whole or in part) in order to build a competitive product or service or for any benchmarking purposes; (xi) remove any proprietary notices or labels from the Services (including, without limitation, the Platform) or the Technology (in whole or in part); or (xii) access or use the Services (including, without limitation, the Platform) or any Technology in any way that violates the Agreement, any third-party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”), including, without limitation, all applicable anti-spam, telemarketing, export control, privacy, and anti-terrorism laws and regulations.
Customer and its Authorized Users shall abide by all applicable local, state, national, and foreign laws, and regulations in connection with their use of the Services. Customer shall be responsible for any breach of this Agreement by its Authorized Users and agrees to enter into agreements with its Authorized Users that contain terms that impose restrictions in all material respects no less than those imposed on Customer herein, including, but not limited to, the provisions regarding the use of the Services and protection of Togal.ai’s intellectual property.
Customer will be responsible for any breach of this Agreement by Customer’s Authorized Users and you agree to enter into agreements with your Authorized Users that contain terms that impose restrictions in all material respects no less than those imposed on you herein, including, but not limited to, the provisions regarding the use of the Services and protection of Togal.ai’s intellectual property.
Customer will notify Togal.ai of any unauthorized use of Customer passwords or account, or any other breach of security that is known or suspected by Customer. Customer agrees not to include any irrelevant, unnecessary, fraudulent, or deceptive terms or instructions into the Services (including, without limitation, the Platform) in an attempt to “break”, “steer”, or otherwise attempt to solicit results from the Services (including, without limitation, the AI Services) that would violate this Agreement or any applicable Laws.
3.4 Site Updates. Togal.ai may change, modify, upgrade, or discontinue any aspect or feature of the Site in whole or in part. Such changes, upgrades, modifications, additions, or deletions will be effective immediately upon notice thereof, which may be made by posting such changes to the Site. Togal.ai shall, from time to time, develop New Features, which will be offered to Customers for additional fees.
3.5 Customer Content. Togal.ai will process Customer Content in order to provide and enhance the Services and Software. The Parties acknowledge and agree that the Customer is at all times the data controller and Togal.ai is a data processor. Customer represents and warrants that it has all necessary rights in the Customer Content to grant Togal.ai the right to use, and Customer hereby grants Togal.ai a non-exclusive, worldwide, royalty-free, transferable, and fully paid license to use, modify, and distribute the Customer Content as used byTogal.ai to provide and enhance the Services. All rights in and to the Customer Content not expressly granted to Togal.ai in this Agreement are reserved by Customer. Customer represents and warrants that any Customer Content hosted by Togal.ai as part of the Services will not (a) infringe or violate the rights of any third party; or (b) be deceptive, defamatory, obscene, or unlawful. Customer acknowledges that any use of the Services by Customer or Authorized Users contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Services. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Parties acknowledge that Togal.ai does not and cannot review all Customer Content and will not be responsible for such content, and that Customer instructs Togal.ai to delete, move, or edit any Customer Content that Togal.ai determines violates or might violate this Agreement, its Terms of Use, or any applicable law or regulation, or is otherwise unacceptable. Customer acknowledges and agrees that the Customer Content may be shared with third parties as necessary to provide and enhance the Services.
Customer Responsibilities. Customer will ensure (and represent, warrant and covenant) that your Customer Content and all other information, content or other materials provided by you or your Authorized Users to Togal.ai via the Services (including, without limitation, the Platform) or otherwise pursuant to the Agreement as well as your activities in connection with, use of or access to the Services (including, without limitation, the Platform) are accurate, complete and do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights. Customer will be solely and completely responsible for the accuracy, quality and legality of any and all Customer Content, the means by which you acquired your Customer Content, and the use of the same by you and your representatives. Without limiting the generality of the foregoing, if Customer Content includes any personal information or proprietary or otherwise confidential information of or in respect of your clients, you will ensure that your and your representatives’ collection and submission into the Services (including, without limitation, the Platform) of the same, and your, your representatives’ and our use and storage of the same as contemplated by the Agreement does not violate any third party rights (including, without limitation, any privacy rights and/or any contractual obligations to your clients or any other third parties), and otherwise complies with Laws, including, without limitation, any Laws relating to the consent of or disclosure to consumers with respect to the collection, use or disclosure of such information as contemplated by the Agreement. If Togal.ai receives information indicating or Togal.ai otherwise reasonably believes that all or any portion of any Customer Content or use of the Services (including, without limitation, the Platform) in connection therewith may violate Laws, any third-party rights or otherwise could reflect poorly on Togal.ai or negatively impair its goodwill (in each case, in Togal.ai’s sole and absolute discretion), Togal.ai may so notify you and, if you fail to remove or modify the relevant portion of your Customer Content from the Services (including, without limitation, the Platform) within two (2) business days, Togal.ai may delete the relevant portion of your Customer Content from the same. Under no circumstances will Togal.ai be liable in any way for any: (i) of your Customer Content transmitted or viewed while using the Services (including, without limitation, the Platform); (ii) errors or omissions in your Customer Content; or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any of your Customer Content.
3.6 Customer Data. Togal.ai will process Customer Data as needed to provide the Services. The Parties acknowledge and agree that the Customer is at all times the data controller and Togal.ai is a data processor. Customer represents and warrants that Customer shall only provide to Togal.ai the minimum amount of personally identifiable information, the extent of which is determined and controlled by Customer in its sole discretion, for each Authorized User, to enable the Authorized User to enjoy the benefit of this Agreement. Customer represents and warrants that Customer is entitled to transfer relevant Customer Data to Togal.ai so that Togal.ai may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf and Customer shall ensure the same. Customer shall ensure that the relevant third parties, including data subjects, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation. Customer acknowledges that Togal.ai is reliant on Customer for direction as to the extent to which Togal.ai is entitled to use and process the Customer Data. Togal.ai shall process the Customer Data only in accordance with the terms of this Agreement and any written instructions given by Customer. Customer acknowledges and agrees that the Customer Data may be shared with third parties as necessary to provide and enhance the Services. Togal.ai will not be liable for any claim brought by an Authorized User arising from any action or omission by Togal.ai, to the extent that such action or omission resulted from Customer's instructions.
3.7 Aggregate and Customer Content Usage and Ownership. Customer hereby grants Togal.ai a non-exclusive, perpetual, worldwide, royalty-free license to use and copy the Aggregate and Customer content for the purpose of providing the Services. Customer acknowledges that Togal.ai shall be the owner all Aggregated Content and may use the Aggregated Content for any business purposes, including product development and improvement purposes.
Customer further agrees that Togal.ai may process Customer Content to develop Togal.ai’s machine learning models and related algorithms and features (“Machine Learning Features”). Togal.ai shall be the exclusive owner of all intellectual property rights in such Machine Learning Features and will be free to use Machine Learning Features to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other, provided that the Machine Learning Features do not disclose any Customer Confidential Information (defined below).
3.8 Data Processing. Togal.ai may transfer and process Customer Content and Customer Data in the United States or any other country in which Togal.ai or Togal.ai affiliates or subcontractors maintain facilities. Customer appoints Togal.ai to perform any such transfer of Customer Data or Customer Content to any such country to provide the Services in compliance with the terms of this Agreement.
3.9 Customer Acknowledgement. As of the Effective Date, Customer acknowledges and agrees that an authorized representative of Customer has evaluated the features and functionality of the Services in a means satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the features and functionality that have been represented to Customer. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Togal.ai regarding future functionality or features.
3.10 Non-Togal.ai Applications. The Services may contain features designed to interoperate with third-party products (“Non-Togal.ai Applications”). To use such features, Customer may be required to obtain access to Non-Togal.ai Applications from their providers and may be required to grant Togal.ai access to Customer’s account(s) on the Non-Togal.ai Applications. Any use by Customer and any exchange of data between Customer and the provider of Non-Togal.ai Applications is solely between Customer and the applicable provider. Togal.ai does not warrant or support Non-Togal.ai Applications or other non-Togal.ai products or services. If Customer installs or enables a Non-Togal.ai Application for use with the Services, Customer hereby grants Togal.ai permission to allow the provider of that Non-Togal.ai Application to access Customer’s data and content as required for the interoperation of that Non-Togal.ai Application with the Services. Togal.ai is not responsible for any disclosure, modification, or deletion of any Customer Data or Customer Content resulting from access by or integration with a Non-Togal.ai Application. If the provider of a Non-Togal.ai Application ceases to make the Non-Togal.ai Application available for interoperation with the corresponding Service features, Togal.ai may cease providing those Service features without providing Customer any refund, credit, or other compensation. Customer uses Non-Togal.ai Applications at its own risk and Togal.ai is not responsible for any acts or omissions of providers of Non-Togal.ai Applications. TOGAL.AI HEREBY DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY NON-TOGAL.AI APPLICATIONS.
3.11 Description and Limitations of the Platform. The Platform is intended to assist you with evaluating construction plans’ compliance with applicable regulatory and/or industry codes or standards. However, all tools, content and other materials available via the Services (including, without limitation, the Platform), including any Outputs (as defined below) resulting from your use thereof, are for informational purposes only, and none of them are intended to, nor should you deem them to be, recommendations or advice. While we have safeguards in place, the Services (including, without limitation, the Platform and any Outputs) may occasionally generate incorrect, incomplete and/or misleading information. As a result, you should not take an action based in whole or in part on any of the tools, content or other materials (including any Output) made available to you by the Services (including the Platform) without validating the results through independent research, obtaining up-to-date information and considering your and/or your clients’ particular circumstances and other existing facts. We do not recommend, guarantee, or represent that the Services (including the Platform) or any information or content made available via the Services (including the Platform and any Outputs) will be accurate, complete and not misleading. Moreover, we do not warrant the performance or results that may be obtained by the use of any of the foregoing. Your use of the Services (including, without limitation, the Platform) and all tools, information, content and materials made available to you by any of the foregoing (including, without limitation, any Outputs) is at your sole and exclusive risk. We do not have any control over your use of the Services (including, without limitation, the Platform or any Outputs) and all information, materials and other content made available to you by the Services (including, without limitation, Platform).
● You acknowledge and agree that as between you and us: (i) you will be solely responsible for the administration of your services to your clients; (ii) the Services, including the Platform and any Outputs, do not and will not in any way provide or include technical or other recommendations or advice and that you must use your independent technical judgment in determining the appropriate course of action for purposes of providing your services to your clients; and (iii) you will administer the delivery of your services to your clients based on your own professional judgment, guidelines, policies and procedures.
● TOGAL.AI DOES NOT MAKE ANY WARRANTY THAT THE SERVICES, INCLUDING PLATFORM, OR ANY RELATED SERVICES OR ANY CONTENT MADE AVAILABLE TO YOU AS THE RESULT OF ANY THEREOF (INCLUDING ANY OUTPUTS) WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR NEEDS, INCLUDING THOSE OF YOUR CLIENTS, ACHIEVE ANY PARTICULAR RESULT, INCLUDING ANY BUG FIX, TECHNICAL WORKAROUND OR ANY OTHER PROCESS OR RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
● Togal.ai Services (and the Platform in particular, if applicable) do not, and are not intended to, replace the need for you to maintain regular data backups or redundant data archives. TOGAL.AI HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY OF YOUR CUSTOMER CONTENT (INCLUDING ANY CONSTRUCTION PLANS OR RECORDS) INPUT INTO, MAINTAINED BY OR OTHERWISE AVAILABLE ON OR VIA THE SERVICES.
4. PAYMENT.
4.1 Customer shall pay Togal.ai all Subscription Fees specified on the Order Form upon receipt of invoice unless otherwise stated on the Order Form. Payment of Customer subscription fee for the applicable Subscription Term is due upon commencement of the Service. In addition to any other remedies available to Togal.ai, Togal.ai shall be entitled to discontinue provision of the Services until all amounts due are paid in full. Except for a material breach by Togal.ai, all payments to Togal.ai are non-refundable and non-cancelable. Specifically, Customer’s loss of construction business or Customer’s failure to use the Services will not be cause for any refund to Customer from Togal.ai. Customer shall reimburse Togal.ai for Togal.ai’s collection costs incurred in attempting to collect any late payments, including reasonable attorneys’ fees.
4.2 The Subscription Fees stated on the Order Form are exclusive of any federal, state, or other governmental taxes, duties, fees, excises, or tariffs (“Taxes”) now or hereafter imposed on the Services. Customer shall be responsible for, and if necessary, shall reimburse, Togal.ai for all such Taxes on any amounts payable by Customer hereunder, except for taxes imposed on Togal.ai’s net income. If Togal.ai has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Togal.ai will add such Taxes to the amount invoiced to Customer.
5 TERM/TERMINATION.
5.1 Term. This Agreement commences on the Effective Date and will remain in effect for the initial term specified on the Order Form (“Initial Term”), unless earlier terminated as provided herein. Upon the expiration of the Initial Term, this Agreement will automatically be renewed for the same period (each such period a “Renewal Term”) unless otherwise elected by either Party by providing written notice[JK1] to the other Party prior to the expiration of the Term then in effect. The Subscription Fees for the Initial Term and the Renewal Term are as stated on the Order Form. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
5.2 Termination. Either Party may terminate this Agreement upon: (1) any material breach of this Agreement by the other Party that is not cured within thirty (30) days (or within ten (10) days in case of failure to pay) following written notice thereof; (2) the other Party becoming insolvent or bankrupt, liquidating or being dissolved, or ceasing substantially all of its business; or (3) a breach of section 11.3. Upon expiration or termination of this Agreement or Services authorized in an Order Form, Customer shall immediately discontinue all access and use of the Services. In the event Customer terminates this Agreement for a material and uncured breach by Togal.ai, Togal.ai shall, as Customer’s sole and exclusive remedy, refund to Customer any prepaid but unused Subscription Fees calculated on a straight-line prorated basis for the remainder of the then-current Term. In addition to any other remedies available to Togal.ai, Togal.ai may suspend Customer’s or any Authorized Users’ access to the Services, at Togal.ai’s sole option, in the event of any violation of this Agreement. Upon termination of this Agreement, Togal.ai shall follow the data return and deletion procedures outlined in Exhibit A.
Customer acknowledges and agrees that, if Customer discontinues use of the Services for convenience, Customer will not be entitled to a refund of any portion of the subscription fee Customer has already paid; and Customer remains liable to pay Togal.ai any remaining payments due.
All Customer Content is the property of the Customer. Upon restriction, suspension or termination of a Customer account, all Customer Content will be deleted from the Services (including the Platform). After deletion of Customer Content, Togal.ai shall have no further responsibility or liability to Customer or any third party with respect to Customer Content. Assuming there has been no material breach of this Agreement by Customer, Togal.ai may allow, at Togal.ai’s sole discretion, Customer continued access to Services in order to export all of Customer Content as well any additional data that may be readily exported from the Services to a standard electronic file format.
6 PROPRIETARY RIGHTS.
Togal.ai will retain all worldwide right, title, and interest (including intellectual property rights) in and to the following (collectively, "Our Property"): (i) the Services (including, without limitation, the Platform), the Technology, and all improvements, enhancements or modifications to any of the foregoing; (b) any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with our making the Services (including, without limitation, the Platform) available to you, including as the result of any support provided to you ("Results"); (c) the “Togal.ai” name, brand, marks and other similar intellectual property; (d) any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users or representatives relating to the subject matter of the Agreement (collectively, "Feedback"), as well as any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by us (whether alone or together with you or any other third party or parties) arising out of or relating to such Feedback; (e) any and all performance data, test or evaluation results, or other metrics derived from the Services (including, without limitation, the Platform), including Aggregated Data; and (f) all intellectual property rights related to any of the foregoing. We expressly reserve all other rights in and to the foregoing. During and after the term of the Agreement (including any subscription term), each party will cooperate with the other to do any and all things which are reasonably necessary or desirable to establish, maintain, protect and enforce a party’s exclusive ownership of the property identified in this Section.
You (or your licensors, as applicable) will own all right, title and interest in and to your Customer Content, as well as in and to any output generated by the Platform and provided to you or your Authorized Users in response to your submission of Customer Content (“Outputs”). Subject to your compliance with the Agreement, Togal.ai hereby assigns to you all of the rights it may have in any Outputs. For the avoidance of doubt, you are solely and absolutely responsible for all Outputs, including for verifying the accuracy, completeness, or appropriateness of the same.
Upon restriction, suspension or termination of your account, all Customer Content will be deleted from the Services. After deletion of Customer Content, Togal.ai will have no further responsibility or liability to you or any third party with respect to Customer Content. Assuming there has been no material breach or violation of this Agreement by you, Togal.ai may allow, in its sole discretion, your continued access to the Services in order to export your Customer Content.
The Site is copyrighted, trademarked, patented, or otherwise protected, and owned or licensed by Togal.ai. Nothing in this Agreement grants Customer or any Authorized User an express or implied right to use any Togal.ai intellectual property except as set forth in section 3.1 above. All proprietary rights in the Services, including the Software and any aggregate usage data, traffic patterns, and Aggregate Content collected by Togal.ai in connection with use of the Services, will be the sole and exclusive property of Togal.ai. Togal.ai retains the royalty-free right to use any suggestions, ideas, feedback, or other recommendations provided by Customer or Authorized Users relating to the Services. Togal.ai may use Customer’s name and/or its logo on Togal.ai’s website and in its marketing materials to indicate that Customer is a client of Togal.ai. Customer hereby grants Togal.ai the right to contact Customer and Authorized Users in connection with their use of the Services unless otherwise stated on the Order Form. All other rights not expressly granted in this Agreement are reserved by Togal.ai.
7. WARRANTIES AND LIABILITY.
7.1 Limited Warranty. Each Party warrants that it has all necessary authority to enter into and perform its obligations under this Agreement. Togal.ai represents and warrants that (1) the Services will perform substantially in accordance with the Documentation under normal circumstances and when used in accordance with this Agreement and applicable Documentation, and (2) the Services provided hereunder will be performed in a professional manner in accordance with prevailing industry standards. Provided that Customer notifies Togal.ai of any breach of the foregoing warranty during the Term[JK2] , Togal.ai shall, as Customer’s sole and exclusive remedy, provide the support services set forth in Exhibit A to this Agreement. The Services may contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges and agrees that Togal.ai is not responsible for the availability of, or the content located on or through, any such external site.
7.2 Disclaimers. THE SERVICES, (INCLUDING, WITHOUT LIMITATION, THE PLATFORM, THE TECHNOLOGY AND ALL TOOLS, CONTENT AND OTHER MATERIALS AVAILABLE VIA THE SERVICES, INCLUDING ANY OUTPUT RESULTING FROM YOUR USE THEREOF) ARE PROVIDED ON AN “AS IS” BASIS AND TOGAL.AI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. Without limiting the generality of the foregoing:
● TOGAL.AI DOES NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY CONTENT AVAILABLE ON, THROUGH OR AS A RESULT OF THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS THEREFROM) AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT. ALL TOOLS, CONTENT AND OTHER MATERIALS AVAILABLE VIA THE SERVICES, INCLUDING THE PLATFORM AND ANY OUTPUT RESULTING FROM YOUR USE THEREOF, ARE FOR INFORMATIONAL PURPOSES ONLY, AND NONE OF THEM ARE INTENDED TO, NOR SHOULD YOU DEEM THEM TO BE, RECOMMENDATIONS OR ADVICE. WHILE TOGAL.AI HAS SAFEGUARDS IN PLACE, THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM AND ANY OUTPUTS, MAY OCCASIONALLY GENERATE INCORRECT, INCOMPLETE AND/OR MISLEADING INFORMATION. TOGAL.AI DOES NOT RECOMMEND, GUARANTEE, OR REPRESENT THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PLATFORM) OR ANY INFORMATION OR CONTENT MADE AVAILABLE BY THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS THEREFROM) WILL BE ACCURATE, COMPLETE AND NOT MISLEADING. MOREOVER, TOGAL.AI DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED BY THE USE OF ANY OF THE FOREGOING. YOUR USE OF THE SERVICES, INCLUDING THE PLATFORM AND ALL TOOLS, INFORMATION, CONTENT AND MATERIALS MADE AVAILABLE TO YOU BY THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS) IS AT YOUR SOLE AND EXCLUSIVE RISK.
● TOGAL.AI DOES NOT MAKE ANY WARRANTY THAT THE SERVICES, INCLUDING PLATFORM, OR ANY RELATED SERVICES OR ANY CONTENT MADE AVAILABLE TO YOU AS THE RESULT OF ANY THEREOF (INCLUDING ANY OUTPUTS) WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR NEEDS, INCLUDING THOSE OF YOUR CLIENTS, ACHIEVE ANY PARTICULAR RESULT, INCLUDING ANY BUG FIX, TECHNICAL WORKAROUND OR ANY OTHER PROCESS OR RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
● You acknowledge that the Services may in whole or in part be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Togal.ai or by third-party providers, or because of other causes beyond our reasonable control. If you have an active subscription to the Platform, Togal.ai will use commercially reasonable efforts to provide advance notice by e-mail of any scheduled service disruption to the Platform and to reinstate the Platform. HOWEVER, TOGAL.AI DOES NOT WARRANT THAT ACCESS TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM, WILL BE UNINTERRUPTED OR ERROR FREE.
● ALL THIRD-PARTY SERVICES INCLUDED IN THE SERVICES (INCLUDING THE PLATFORM AND ANY RELATED SERVICES) ARE PROVIDED "AS IS" AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY SERVICE PROVIDER.
● You acknowledge and agree that information that you receive from Togal.ai Services is generated electronically using artificial intelligence and is not generated by a human and therefore you acknowledge and agree that your use of the AI Services may produce inaccurate results or incorrect information in certain situations. The AI Services are meant to be a tool to assist you with evaluating construction plans’ compliance with applicable regulatory and/or industry codes or standards, but the Services (including the AI Services) do not constitute, and are not a substitute for, the expertise of trained professional humans. Before relying upon any information generated or received from the Services (including the AI Services), you should seek advice from or consult with a qualified professional human to evaluate the accuracy of any such information. You acknowledge that relying upon any information generated through the AI Services without first verifying the accuracy of such information with a qualified human may cause harm, including but not limited to legal, financial, or physical harm.
Third-party content and applications are provided “as-is,” exclusive of any warranty. Togal.ai disclaims all liability for any harm or damages caused by any third-party networking or hosting providers. You acknowledge that the Services are solely for the purpose of providing information. Togal.ai takes no responsibility or makes any warranties or representations about the completeness, accuracy, or reliability of this information or the Services. Any action you take as a result of the information provided by Togal.ai is solely at your own risk. Togal.ai is not responsible for any losses or damages incurred as a result of using the functionality of the Services.
7.3 Liability. Togal.ai will not be liable for any special, indirect, exemplary, punitive, incidental, or consequential damages of any nature (including Customer’s loss of construction business or Customer’s failure to use the Services). In any event, aside from its obligations in section 8, Togal.ai’s total maximum liability arising out of or in any way connected to this Agreement will not exceed the amount paid to Togal.ai by Customer during the twelve-month period immediately preceding such claim. These limitations will apply whether a claim arises under contract, tort, or any other theory of liability. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these jurisdictions, Togal.ai’s liability will be limited to the greatest extent permitted by law. The limitations set forth in this section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. The Parties acknowledge and understand that the disclaimers, exclusions, and limitations of liability set forth herein form an essential basis of the agreement between the Parties, reflect an allocation of risk between the Parties, and that absent these disclaimers, exclusions, and limitations of liability, the terms and conditions of this Agreement would be substantially different.
8 INDEMNITY.
8.1 During the Term. If you have an active subscription to the Platform and all or any portion of the Platform is, or in Togal.ai’s opinion is likely to be, claimed to infringe misappropriate, or otherwise violate any third-party intellectual property right, or if your use of the Platform is in whole or in part enjoined or threatened to be enjoined, then Togal.ai may, at its option and sole cost and expense: (i) replace or modify the Platform (in whole or in part) so as to make the Platform (as replaced or modified) non-infringing, while providing substantially similar features and functionality, and in which case such replacements or modifications will constitute a part of the Platform for purposes of the Agreement; (ii) obtain for you a right to continue using the Platform as materially contemplated by the Agreement; or (iii) if neither of the foregoing is commercially practicable in Togal.ai’s sole discretion, terminate the term of the Agreement, including any subscription term (or your rights to access and use the infringing component of the Services) and provide you with a refund of any prepaid, unused fees for the Services or the infringing component, as applicable.
Additionally, if you have an active subscription to the Platform, then Togal.ai will defend you against any third-party claims brought against you alleging that your or an Authorized User’s use of the Platform in accordance with the Agreement infringes or misappropriates such third party’s patents, copyrights, or trade secrets, and will indemnify you against all damages finally and actually paid as part of a final judgment or settlement thereof. The foregoing obligation does not apply to the extent the alleged infringement arises out of or relates to: (i) your Customer Content or Third-Party Services; (ii) modification of the Platform other than by Togal.ai; (iii) access or use of the Platform in combination with any hardware, system, software, network, or other materials or service not provided by Togal.ai; (iv) your failure to timely implement any modifications, upgrades, replacements, or Enhancements made available to you by Togal.ai or on its behalf; or (v) any act, omission or other matter described in Section 10.
THIS SECTION 8 SETS FORTH YOUR SOLE REMEDY AND TOGAL.AI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PLATFORM), OR ANY TECHNOLOGY OR RELATED SERVICES OR OTHER MATERIALS PROVIDED BY OR MADE AVAILABLE BY TOGAL.AI UNDER THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
In addition, if the use of the Services infringes or is enjoined, or Togal.ai believes it is likely to infringe or be enjoined, Togal.ai may, at its sole option: (a) procure for Customer the right to continue use of the Services as furnished; (b) modify the Services to make them non-infringing, provided that they still substantially conform to the applicable Documentation; or (c) if Togal.ai, after using commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate this Agreement and refund to Customer any prepaid but unused Subscription Fees calculated on a straight-line prorated basis for the remainder of the then-current Term. The intellectual property indemnity provided herein does not apply to the extent the alleged infringement arises from (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation, (y) any combination of the Services and third-party applications (including but not limited to Non-Togal.ai Applications), or (z) any unauthorized modification of the Services. This section states Togal.ai’s sole and exclusive liability and Customer’s sole remedies for any threatened or actual infringement of proprietary rights.
8.2 During the Term, Customer shall defend, indemnify, and hold harmless Togal.ai and its officers, directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities, judgments, settlements, losses, costs, or expenses of any kind, including reasonable attorneys’ fees, arising out of (a) processing of Customer Data within the scope of this Agreement; (b) Customer’s misuse of the intellectual property rights of any third party; and (c) any Customer Content that may violate section 3.5 of this Agreement.
THIS SECTION 8 SETS FORTH YOUR SOLE REMEDY AND TOGAL.AI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PLATFORM), OR ANY TECHNOLOGY OR RELATED SERVICES OR OTHER MATERIALS PROVIDED BY OR MADE AVAILABLE BY TOGAL.AI UNDER THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9 CONFIDENTIALITY.
The Parties and Authorized Users shall, during and after the existence of this Agreement, hold in strict confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other Party. The term “Confidential Information” means all non-public information that the other Party designates as being confidential, or which, under the circumstances of disclosure, ought to be reasonably understood to be confidential. Confidential Information includes, but is not limited to, information concerning business methods, pricing, business plans, new product launches, new product development, customer and vendor information, internal policies and procedures, other financial information, technical information and design, and the terms and conditions of this Agreement. Each Party shall not disclose the other Party’s Confidential Information without the prior written consent of such other Party, except to its employees, contractors, or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this section. Information will not be deemed confidential if it (a) was known to the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as evidenced by written records of the receiving Party; (b) is now or later becomes (through no act or failure on the part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (c) is supplied to the receiving Party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving Party without use of or reference to any Confidential Information provided by the disclosing Party. The restrictions on disclosure imposed by this section do not apply to information that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief. Upon termination of this Agreement, each Party shall promptly cease all further use of Confidential Information, return to the other Party all physical materials containing Confidential Information, whether the materials were originally provided by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information kept by either Party in electronic or other non-physical form. The Parties acknowledge that the receiving Party will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing on the receiving Party’s backup or disaster-recovery systems, or which must be maintained for regulatory or policy purposes, provided that such Party continues to abide by its obligations under this section. Togal.ai will be deemed to satisfy its obligations to return Confidential Information if it complies with its obligations with respect to the export or availability of Customer Content in Exhibit A. Termination or expiration of this Agreement will not affect each Party’s continuing obligations under this section.
10 PRIVACY.
The Togal.ai Privacy Policy is available on www.Togal.ai and may be amended from time to time. Any updates to the Privacy Policy will be posted to the Site and will be effective immediately upon posting to the Site. It is Customer’s responsibility to review the Privacy Policy from time to time on the Site to ensure that Customer continues to agree with all of its terms. Customer’s continued use of the Site following the posting of changes to the Privacy Policy will mean Customer accepts those changes. If there is any conflict between the Privacy Policy and this Agreement, this Agreement will govern.
11 GENERAL.
11.1 Waiver/Amendment. This Agreement may not be modified except by a written instrument signed by both Parties. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. No delay or omission by Togal.ai to exercise any right or power under the Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by Togal.ai in any one instance of any of the covenants, conditions or agreements to be performed by you will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. Togal.ai updates these Terms from time to time. If you have an active subscription to the Platform, then Togal.ai will use commercially reasonable efforts to let you know via a pop-up alerting you of the change prior to or while you are accessing your Platform account, or by email, in Togal.ai’s discretion, except (a) when Togal.ai launches a new service or feature, or (b) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you do not agree to any modification or other update, then your sole remedy will be to terminate the Agreement (and your use of the Services as a result). Your continued use of the Services (including, without limitation the Platform) following any change to these Terms is and will be deemed to be acceptance of all changes.
11.2 Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement, in whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other Party’s prior written consent; except that: (a) Togal.ai may assign, delegate, or otherwise transfer this Agreement without such consent in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of such Party’s assets or any other transaction in which more than fifty percent (50%) of its voting securities are transferred (“Change in Control”); and (b) Customer may assign, delegate, or otherwise transfer this Agreement upon any Change in Control with Togal.ai’s prior written consent and subject to all of the terms of this Agreement. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.
11.3 Compliance with Laws. Both Parties shall comply with all applicable local, state, national, and foreign laws, rules, and regulations including all applicable export and import laws and regulations in connection with their performance, access, and/or use of the Services under this Agreement. Customer shall comply with all legal duties applicable to Customer including obligations as data controller by virtue of Customer’s role in determining Authorized Users. Specifically, Customer shall provide relevant persons and/or participants with all information Customer is required by law to provide, and, if necessary, shall obtain the consent of these persons. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
11.4 Disputes: Arbitration Agreement, and Class Action Waiver
*Please read this section carefully. Except as the Agreement otherwise provides, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.
Agreement to Binding Arbitration. Before initiating arbitration, you acknowledge and agree that you will first give Togal.ai an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to Togal.ai including, but not limited to, information or representations related to the products or Services and upon which you rely. You may seek to resolve any customer concerns through Togal.ai’s support services at team@codecomply.ai or send the written description by U.S. Mail to 5959 Waterford District Drive, Suite 200, Miami FL, 33126. You agree to negotiate with Togal.ai in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within thirty (30) days after Togal.ai’s receipt of your written dispute, you agree to the dispute resolution provisions below.
By signing this Agreement, you agree that you are required to resolve any claim that you may have against Togal.ai or the Services on an individual basis in arbitration, as set forth in this Section. You and Togal.ai agree that any disputes between us (including any disputes between you and a third-party agent of Togal.ai) will be resolved through binding and final arbitration and not in a court. This includes but is not limited to: (i) any dispute, claims, or controversy arising out of or relating to any part of the Agreement, or the existence, breach, termination, enforcement, interpretation or validity thereof; or (ii) your access to or use of the Services, including the Platform or Togal.ai’s other services or products at any time. Such dispute shall be submitted to the American Arbitration Association (“AAA”) for individual arbitration in Miami-Dade County, Florida and shall be before one arbitrator. The arbitration shall be administered by the AAA pursuant to its Consumer Arbitration Rules and Procedures, only as modified by this Arbitration Agreement.
You and Togal.ai agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the terms of this Agreement are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
By agreeing to individual arbitration, you understand and agree that you are waiving your right to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes or claims. The rules in arbitration are different. There is no judge or jury. Although review is limited, an Arbitrator can award on an individual basis the same damages and relief as would be available in court, and must enforce the same limitations stated in this Agreement as a court would.
No Class Action. You and Togal.ai each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. This means that you and Togal.ai each agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an Arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
Rules and Governing Law. The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The rules of the arbitral forum will govern all aspects of the arbitration, except to the extent those rules conflict with the terms of this Agreement.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA") will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Florida, without regard to its conflict-of-laws provisions.
Arbitration Process. You can begin the arbitration by submitting a Demand for Arbitration, which is a statement containing basic information about the dispute: (a) the names, addresses and phone numbers of the parties involved (you and Togal.ai, in most cases); (b) a description of the dispute; and (c) a short statement of the relief you are seeking. The AAA provides a Demand for Arbitration form on its website, or you may contact the AAA at 800-778-7879. Complete the Demand for Arbitration and make at least four (4) copies. Keep one (1) copy for your records. Send one (1) copy to us by certified mail at Notice of Dispute, Address: TOGAL.AI, INC. 5959 Waterford District Drive, Suite 200, Miami FL, 33126.
Send the final two (2) copies of the Demand for Arbitration to the AAA. Please be sure to include: (1) a copy of this arbitration provision (you may obtain a copy from this Agreement); and (2) the appropriate AAA filing fee. You may obtain the amount of the fee by consulting the AAA’s rules. Those rules may be obtained by visiting the Consumer section on the AAA’s website, or by calling the AAA at 800.778.7879.
Unless you and Togal.ai agree otherwise in writing, in the event that any provision of this Section is found not to apply to you or to a particular claim or dispute as a result of a decision by the Arbitrator or a court order, any claim or dispute that has arisen or may arise between you and Togal.ai must be resolved exclusively by a state or federal court located in Miami-Dade County, Florida. You and Togal.ai will submit to the personal jurisdiction of the courts located within Miami-Dade County, Florida for the purpose of litigating all such claims or disputes.
Arbitrator’s Decision. The Arbitrator will decide the substance of all claims exclusively in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The Arbitrator will not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
Regardless of the manner in which the arbitration is conducted, the Arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. Judgment on the award may be entered in any court having competent jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. The Arbitrator’s decision shall be final and binding on all parties.
Judgment on any award rendered by the Arbitrator is final, binding and conclusive on you and us and your and our respective administrators, executors, legal representatives, successors and assigns.
With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.
Fees. Payment of all filing, administration and Arbitrator fees will be governed by AAA’s applicable consumer rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law, or the Arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the Arbitrator.
11.5 Severability/Notice. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force. Any notice, consent, or other communication hereunder must be in writing, and must be given personally, sent via overnight delivery or via email with confirmation of receipt, to either Party at its respective address set forth in the Order Form (or such other address as provided by that Party). Notices will be deemed given when delivered.
11.6 Independent Contractors. The relationship of the Parties is that of independent contractors and nothing contained in this Agreement will be construed to make either Party an agent, partner, joint venturer, or representative of the other for any purpose. This Agreement is for the sole benefit of the Parties and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of this Agreement.
11.7 Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by any reason where failure to perform is beyond the reasonable control of the non-performing Party.
11.8 Entire Agreement/Survival. This Agreement, together with any URLs contained herein, any exhibits, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals, purchase orders, non-disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under this Agreement, regardless of any failure of Togal.ai to object to such terms, provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of sections 3.7, 4, and 6 through 11 will survive any termination of the Agreement.
PLEASE BE ADVISED THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS AND DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE TERMS ALSO ALLOW YOU TO PURSUE CLAIMS AGAINST TOGAL.AI ONLY ON AN INDIVIDUAL BASIS, AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. AS A RESULT, YOU MAY SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
AITOGAL. MAY IMMEDIATELY TERMINATE YOUR ACCESS TO THE SERVICES (IN WHOLE OR IN PART) IF YOU FAIL TO COMPLY WITH ANY PROVISION OF THESE TERMS, IF TOGAL.AI BELIEVES YOUR USE OF ALL OR ANY PORTION OF THE SERVICES WILL REFLECT POORLY ON TOGAL.AI, ITS SERVICES OR ITS GOODWILL, OR IF TOGAL.AI OTHERWISE DEEMS YOUR USE OF THE SERVICES TO BE ILLEGAL OR OTHERWISE INAPPROPRIATE, IN EACH CASE, IN TOGAL.AI’S SOLE AND ABSOLUTE DISCRETION.