These Service Terms and Conditions (“Terms”) are hereby incorporated by reference into the Order (as defined below) entered into between you (“you” or “Customer”) and Deepchecks Inc. and its affiliates (“Deepchecks”, “we”, “our” or “us”) and govern your access to, and use of Deepchecks’ platform for testing and monitoring machine learning systems (“Platform”) and related services set forth in the Order (together with the Platform, “Services”).
By signing an Order or by accessing and/or using the Services or any part thereof, you expressly acknowledge and agree that you have understood and agree to comply with, and be legally bound by, these Terms.
By accessing and/or using the Services, you represent and warrant that you are at least 18 years old and, if you are entering into these Terms on behalf of your employer or other legal entity, that you have full authority to bind said employer or other legal entity to these Terms. If you do not agree to comply with and be bound by these Terms or do not have authority to bind your employer or other legal entity, please do not accept these Terms or access or use the Services.
You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
1. Description of Services. All references in these Terms to the “Services”, include: (i) the Platform, which is made available to you on a software-as-a-service (SaaS) basis or on an on premise basis, as agreed in your Order; (ii) the products, services and features made available or provided to you by Deepchecks in connection with the Platform, which are described in your Order; (iii) any documentation as may be provided by Deepchecks at its sole discretion to you in connection with (i) or (ii); and (iv) the content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, and the trademarks, service marks and logos (“Marks”), contained in or made available through (i) through (iii).
2. Orders. You may order Services by completing, executing and submitting to Deepchecks an ordering document, executed by you in the form provided to you by Deepchecks (“Order”). Each Order will set forth the type and description of the Services being ordered and the applicable fees payable for such Services. Orders shall become binding upon their written acceptance by Deepchecks. In the event of a conflict between these Terms and an Order, these Terms shall prevail unless explicitly stated otherwise in the Order. Deepchecks shall not be responsible for providing any service or product not described in the applicable Order. The Order together with these Terms will be referred herein collectively as the “Agreement”
3. Rights to Use. Subject to the terms and conditions of the Agreement and payment of the applicable fees, Deepchecks grants you a non-exclusive, non-sublicensable, non-transferable, limited right to access and use Platform, and to install the Platform where it is provided on an on premise basis, in accordance with the purchased Services described in the Order, during the Term (as defined below) and solely for your internal business purposes. The foregoing right is also subject to the access and use restrictions specified in the Order. The Agreement se Terms and the Order set forth the complete scope of rights and services to be granted and provided to Customer by Deepchecks in connection with the Services Deepchecks shall not be obligated to provide to Customer any versions, functionalities, improvements, further developments, enhancements, modifications, updates, upgrades, fixes, patches, add-ons to/of the Services, and/or any support, maintenance, professional or other services, and/or any products, other than those expressly set forth in the Order, and the provision or performance of the foregoing shall be subject to a separate mutual written agreement between the you and Deepchecks and payment of additional fees as determined by Deepchecks in its sole discretion and agreed by the you and Deepchecks in writing.
4. Restrictions on Use
4.1. General Restrictions. Customer will not, nor will it authorize or assist others to: (a) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce limitations on use of the Platform; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Platform or otherwise discern the source code of the Platform except and solely to the extent permitted under applicable law notwithstanding this restriction; (c) use the Platform on a service bureau or time sharing basis or to provide services to third parties; (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Platform or any of Customer’s rights therein; (e) violate or abuse password protections governing access to the Platform; (f) interfere or attempt to interfere with the integrity or proper working of the Platform; (g) use any automated means to access the Platform; (h) take any action that imposes or may impose, at Deepchecks’ sole discretion, a disproportionately large load on the Platform; (i) use Deepchecks’ name, logo or trademarks without prior written consent; (j) use the Services or any part thereof in order to conduct any comparisons, competitive analysis, penetration testing, vulnerability assessment, aimed identified security vulnerability, or other benchmarking activities, either alone or in connection with any other product or hardware without the prior written consent of Deepchecks or use the Services or any part thereof to develop a competing product or service; and/or (k) use the Services or any part thereof in any unlawful manner or in breach of the Agreement.
4.2. Usage Limits. Access to and use of the Services are subject to usage limits as defined in the Order. If Customer wishes to exceed its contractual usage limit, Customer shall submit such request to Deepchecks through email. Deepchecks may approve or reject the submission at its sole discretion. Any extra charges and fees for excess or increased usage, if approved, shall be invoiced by Deepchecks and Customer shall pay the invoice within 30 days from the date thereof. Deepchecks reserves the right to monitor Customer’s usage of the Services in order to enforce the usage limitations and restrictions set forth in these Terms, including in this Section 7, and the Order.
5. Customer Account. A Customer account will be created in connection with Customer’s use of the Platform (“Account”). Customer is solely responsible for any activity that occurs in Customer’s Account, including without limitation, any activity performed in the Account, and Customer agrees to keep Customer’s Account password secure. Customer shall: (i) not allow anyone other than Customer’s permitted employees to access and use Customer’s Account (“Permitted Users”); (ii) keep, and ensure that Permitted Users keep, all Account login details and passwords secure at all times; (iii) ensure that the login details for each Permitted User may only be used by that Permitted User, and that multiple people may not share the same login details; and (iv) promptly notify Deepchecks in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account.
6. Proprietary Rights. Deepchecks and its licensors solely and exclusively own any and all worldwide right, title and interest in and to the Services, including all worldwide intellectual property rights therein and in any modifications, reproductions, corrections, enhancements, updates, upgrades, improvements, customizations and derivative works of/to the Services and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill, including data related your usage of the Services. Customer will not delete, remove, obscure or in any manner alter the copyright, trademark, and other Deepchecks’ or any other third parties’ intellectual proprietary rights notices appearing on or in the Services or any component thereof. Customer expressly acknowledges that the Platform may include third party components, which shall be used by Customer solely in conjunction with the Platform, and shall not be used for any other purpose without the prior written consent of Deepchecks. If Customer contacts Deepchecks with any suggestions or feedback data regarding the Services, which may include suggestions for, or feedback concerning, customizations, features, improvements, modifications, corrections, enhancements, derivatives or extensions, such feedback shall be deemed to be the sole property of Deepchecks and Customer hereby irrevocably transfers and assigns to Deepchecks all intellectual property rights in such feedback and waives any and all moral rights that Customer may have in respect thereto. Any rights therein not explicitly granted to you hereunder, are reserved to and shall remain solely and exclusively proprietary to Deepchecks (or its third party licensors). “Deepchecks”, the Deepchecks logo, and other marks are Marks of Deepchecks or its affiliates.
7. Customer Data
7.1. License to Customer Data. While using the Services, certain Customer Data will be made available to Deepchecks. Customer hereby grants Deepchecks a royalty-free, fully-paid, irrevocable, non-exclusive license to use, process, display, copy and store the Customer Data in order to: (i) provide the Services to you; (ii) administer and make improvements to the Services; and (iii) collect and analyze anonymous information. Customer acknowledges that the Platform does not operate as an archive or file storage service. Customer is solely responsible for the backup of Customer Data and Customer alone can implement back up plans and safeguards appropriate for its requirements. “Customer Data” means raw data provided by Customer and its Permitted Users or on their behalf to Deepchecks for the purpose of and in connection with using the Platform.
7.2. Ownership. Customer shall own all rights, title and interest in and to all of the Customer Data. Customer represents and warrants that it owns or has obtained the rights to all of the rights subsisting in the Customer Data and Customer has the right to provide Deepchecks the license granted herein to use such Customer Data in accordance with the Agreement. Customer shall have sole responsibility for the reliability, integrity, accuracy and quality of the Customer Data.
7.3. Commitment. To the extent that Customer Data contains personal data, Customer shall display all privacy notices, maintain at all times all appropriate legal bases, and comply at all times with all applicable privacy and data protection laws and regulations for allowing Deepchecks to use such personal data (if any) in accordance with the Agreement (including, without limitation, the provision of such data to Deepchecks, the transfer of such data by Deepchecks to its affiliates and subcontractors, including transfers outside of the European Economic Area).
8. Pricing and Payment
8.1. Fees. In consideration for the Services, Customer shall pay to Deepchecks the applicable non-refundable fees specified in the Order, at such times and for such periods as set forth therein.
8.2. Payment Terms. If not otherwise specified in the Order, all fees shall be due and payable within 30 days of the date of invoice. All amounts payable under the Agreement shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and Customer is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with the Agreement.
9. Access and Use of the Platform. Customer is solely responsible for acquiring and maintaining all of the equipment, Platform, services and items necessary to access and make use of the Platform. Customer may access the Platform only through the interfaces and protocols provided or authorized by Deepchecks and agrees to set up and use the Platform in full compliance with Product’s documentations. Customer acknowledges that Deepchecks may from time to time auto update the Platform (which may include adding or removing functionality) without a prior notification.
10.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM IS PROVIDED BY DEEPCHECKS TO CUSTOMER “AS IS” AND DEEPCHECKS, MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PLATFORM AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF TITLE, MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
10.2. DEEPCHECKS, DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH USE OF THE PLATFORM (COLLECTIVELY, “REPORTS”), OR THAT THE REPORTS ARE COMPLETE OR ERROR-FREE. THE REPORTS DO NOT CONSTITUTE LEGAL ADVICE, AND CUSTOMER UNDERSTANDS IT MUST DETERMINE FOR ITSELF THE NEED TO OBTAIN ITS OWN INDEPENDENT LEGAL ADVICE REGARDING THE SUBJECT MATTER OF ANY REPORT. CUSTOMER’S USE OF AND RELIANCE UPON THE PLATFORM AND ANY REPORTS IS ENTIRELY AT CUSTOMER’S SOLE DISCRETION AND RISK.
10.3. Customer is solely responsible for proper configuration of all databases and other Platform used with the Platform.
11. Limitation of Liability. IN NO EVENT WILL DEEPCHECKS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF USE, DATA, GOODWILL, BUSINESS, PROFITS, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, FINES OR OTHER PENALTIES FOR NONCOMPLIANCE ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DEEPCHECKS (AND ITS LICESNORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF DEEPCHECKS FOR ANY DAMAGES UNDER THE AGREEMENT OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU FOR THE SERVICES DURING THE 6 MONTHS PRIOR TO BRINGING THE CLAIM.
12. Term and Termination
12.1. Term. Unless stated otherwise in the Order, the Agreement shall become effective upon execution of your Order and continue for an initial term of 1 year (the “Initial Term”), after which the Agreement shall automatically renew for successive 1 year terms (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either you or Deepchecks provide the other party with at least 60 days written notice prior to the end of the Initial Term and any Renewal Term of intent not to renew. In addition, the Agreement may be terminated as any time in accordance with Section 12.2 below.
12.2. Termination. Notwithstanding the foregoing, (i) Deepchecks may terminate the Agreement at any time without cause upon 60 days prior written notice to you; and/or (ii) either party may immediately terminate the Agreement, by written notice to the other party: (a) if the other party has breached the Agreement and failed to cure such breach within 30 days from receipt of written notice thereof; or (b) if such party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding or has any petition under bankruptcy, insolvency or administrative law filed against it, which petition is not dismissed within 60 days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. A party that becomes subject to any of the events described in clause (b) shall immediately notify the other party in writing.
12.3. Consequences of Termination. Upon termination or expiration of the Agreement: (i) the rights granted to you pursuant to the Order and Section 1 of these Terms will revert to Deepchecks; (ii) you will cease all use of the Services; and (iii) Deepchecks may, without liability to Customer, disable Customer’s Account and its Permitted Users’ passwords and access to all or part of the Platform, and Deepchecks shall be under no obligation to provide the Platform or any related services. Sections 4, 6, 7, 10, 11, 12.3 and 14 through 18 shall survive any expiration or termination of the Agreement. Termination of the Agreement for any reason shall not relieve Customer from its obligation to pay any outstanding payments due under the Agreement.
13. Modifications. We reserve the right, at our discretion, to change these Terms at any time. Such change will be effective 10 days following our posting the revised Terms on Deepchecks’ website, and your continued use of the Services thereafter means that you accept those changes.
14. Indemnification. You agree to defend, indemnify and hold harmless Deepchecks and our affiliates and our respective officers, directors, agents, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from: (i) your use of the Service; and/or (ii) your breach of the Agreement.
15. Disclosure. We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Service as we reasonably believe necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce the Agreement, including to investigate potential violations thereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your support requests, and/or (v) protect the rights, property or safety of Deepchecks, its users or the public.
16. Assignment. The Agreement, and any rights granted thereunder, may not be transferred or assigned by you but may be assigned by Deepchecks without restriction.
17. Governing Law and Jurisdiction. If you have signed an Order with Deepchecks Ltd., then the Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to its conflict of laws rules and you agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv-Yafo, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. If you have signed an Order with Deepchecks Inc., then such Order and the Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules and you agree to submit to the personal and exclusive jurisdiction of the courts located in New York County, NY, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM RELATING TO THE AGREEMENT.
18. General. These Terms and the Order represent the complete agreement concerning the Services between you and Deepchecks and supersede all prior agreements and representations related to the subject matter hereof. Except for your obligation to pay Deepchecks, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Nothing in the Agreement shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision of these Terms are held to be unenforceable, these Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.
Last Updated: October 25, 2020