Version 2 of this agreement (last updated on September 20, 2024)

These Terms of Service (these “Terms”) of Levity AI GmbH, Große Hamburger Str. 17, 10115 Berlin, Germany (“Levity,” “our,” or “we”) apply to Levity’s proprietary online web-based platform designed for creating customized AI solutions and integrating AI solutions into business workflows, offered on a SaaS basis, with the support of artificial intelligence models (“AI Model”) via levity.ai (the “Site”) (collectively, the “Services”). By accessing or using the Site or the Services, you agree to be bound by these Terms. The scope of the Service is specified in the entry screen, an order document or statement of work (collectively “Order Form”).

Important Disclaimer: If you have entered into a separate written agreement with Levity (such as a Master Service Agreement), that agreement governs your use of our Services and supersedes these Terms of Service. These Terms apply only where no such agreement exists.

General Provisions

The Services can be accessed and used solely by entrepreneurs or businesses, subject to the regulations of these Terms. Pursuant to sec. 14 of the German Civil Code, an entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a transaction, acts in exercise of his or its trade, business or profession. If you are using the Site or accessing the Services in your capacity as an employee, consultant or agent of a company or other entity, you represent that you are an employee, consultant or agent of that company or entity, and that you have the authority to bind that company or entity to these Terms. For the purpose of these Terms, you (and, if applicable, the company or entity that you represent) will be referred to as “Customer” or “you”.

Levity reserves the right to change or modify these Terms, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, without limitation, sending you an email, posting a notice on the Site, or posting the revised Terms on the Site and revising the date at the top of these Terms. Any changes or modifications will be effective after we provide notice that these Terms have been modified. You acknowledge that your continued use of the Site or any of the Services following such notice constitutes your acceptance of the modified Terms.

Levity reserves the right – at any time, and without notice or liability to you – to modify the Site or the Services, or any part of them, temporarily or permanently. We may modify the Services for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.

These Terms, its Schedules, any applicable Order Form(s), including any document incorporated therein, and any applicable amendment (collectively the “Agreement”) constitute the entire agreement between the Parties with respect to the provision of the Services by Levity. Any terms or conditions that you send to Levity that are inconsistent with or in addition to this Agreements are hereby rejected by Levity and will be deemed void and of no effect. The “Effective Date” of this Agreement is the date you first use the Site, or access any of the Services.

Registration

In order to use Levity's Services, you must first complete the Levity registration process via the Site or book a Demo via the Site, after which you can register for an account via the Site. Depending on the Contract Terms you agreed on, the Agreement will include: (a) the period during which you can access the Services (the “Contract Period”); and (b) the fee you must pay to Levity in exchange for your right to access the Services (the “Subscription Fees”). All such information is incorporated into this Agreement by reference. Contracts can differ from each other depending on the Services you choose. Besides the Subscription Fee, your Agreement might include Professional Services such as different Support packages and Implementation services.

You agree: (a) to provide accurate, current and complete information about you as part of the registration process (“Registration Data”); (b) to maintain the security of your password(s); (c) to maintain and promptly update your Registration Data, and any other information you provide to Levity, and to keep it accurate, current and complete; (d) to accept all risks of unauthorized access to your Registration Data, and any other information you provide to Levity, via your account(s) or password(s); (e) that you are responsible for maintaining the security of your account and safeguarding your password(s), and (f) that you will be fully responsible for any activities or transactions that take place using your account(s) or password(s), even if you were not aware of them.

Scope & Use of Services

Subject to your continued compliance with this Agreement, Levity grants you a limited, non-transferable, non-exclusive, revocable right and license to: (i) access and use the Services and its associated documentation, solely for your own internal business purposes, for the Contract Period for which you have paid the applicable Subscription Fees.

The provision of the Site and Service includes the Customer's right to use the Service according to this section 3 and the provision of storage space for the Customer Content, data generated by Customer through use of the Service and/or the data inserted into the AI Model (the "Data Points").

Levity will further grant a factual use right, in the form of access and an economically privileged position to components of the Service, which in the parties' common assumption at the time of the conclusion of the Agreement do not enjoy copyright protection. These are in particular the AI Model or predictions of the AI Model ("Predictions"). Should copyright protection rights nevertheless exist or arise in the future for the non-protected components of the Service, the provisions pursuant to this section 3 shall apply accordingly.

Except as expressly authorized by this Agreement, you may not: (a) modify, disclose, alter, translate or create derivative works of the Site or the Services; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof); (c) offer any part of the Services on a timeshare or service bureau basis; (c) allow or permit any third party to access or use the Services; (d) use the Site or the Services to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorized manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions; (e) build a competitive product or service, or copy any features or functions of the Site or the Services (including, without limitation, the look-and-feel of the Site or the Services); (f) interfere with or disrupt the integrity or performance of the Site or the Services; (g) disclose to any third party any performance information or analysis relating to the Site or the Services; (h) remove, alter or obscure any proprietary notices in or on the Site or the Services, including copyright notices; (i) use the Site or the Services or any product thereof for any illegal or unauthorized purpose, or in a manner which violates any laws or regulations in your jurisdiction; (j) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up the Services or any software, documentation, or data relating to the Services, except to the limited extent that applicable law prohibits such a restriction; or (k) cause or permit any third party to do any of the foregoing.

Additionally, it is against Levity policy to use our Service in support of a business, software, or other material that is dedicated to — or focused on facilitating or encouraging — discriminatory, malicious, or harmful speech or actions. This includes, but is not limited to, hate speech and any other material that Levity reasonably believes degrades, intimidates, or incites violence against people based on gender, race, sexual orientation, age, ethnicity, disability, national origin, religion, or other protected categories.

Levity may use vicarious agents (e.g., hosting providers) for the provision of the Services.

Customer Content

Except for the limited rights expressly granted to Levity hereunder, Customer retains all rights, title and interest in and to any data, documents and all other content in electronic form that Customer make available to Levity through the Site or Service (the “Customer Content”), including without limitation all related intellectual property rights inherent therein. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Content.

Customer shall ensure that it is entitled to transfer the relevant Customer Content to Levity so that Levity may lawfully use, process, and transfer the Customer Content in accordance with this Agreement on Customer’s behalf. Customer grants Levity a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Content (a) to maintain, provide, and improve the Service and provide the Service and Professional Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, including processing initiated by users of the Levity Service in their use of the Service, such as by implementing integrations between Customer’s Connected Applications; and (d) as otherwise required by applicable law.

The Customer warrants that the Customer Content does not contain or spread any viruses or other malware such as worms or spyware and that its transfer to and contractual processing by Levity does not infringe any third-party rights or violate any laws. The Customer shall ensure that the Customer Content does not include anything (a) false, inaccurate or misleading; (b) harassing, offensive, racist, pornographic or obscene; (c) which can damage the reputation of Levity.

Without limiting any of your representations or warranties with respect to the Customer Content, Levity has the right (but not the obligation) to reject or remove any Customer Content, without notice to you, that Levity believes, in Levity’ sole discretion: (i) violates this Agreement or any Levity policy, (ii) violates or misappropriates the intellectual property rights of any third party, or (iii) is in any way harmful or objectionable.

Connected Applications

The Service contains features designed to interoperate with Customer’s or a third party’s web-based, mobile, or other software application that is made available by Customer to Levity (“Connected Applications”). To use such features, Customer may be required to obtain access to such Connected Applications from their providers, and grant Levity access to Customer’s account(s) on such Connected Applications.

If Customer uses a Connected Application with the Service, Customer grants Levity permission to allow the Connected Application and its providers to access Customer Content solely as required for the interoperation of that Connected Application with the Service.

Any acquisition by Customer of Connected Applications, and any exchange of Customer Content between Customer and any Connected Application provider, product or service, is solely between Customer and the applicable Connected Application provider. Levity does not warrant or support Connected Applications. Levity is not responsible for any disclosure, modification or deletion of Customer Content resulting from access by any Connected Application or its providers.

Ownership; Reservation of Rights

Levity owns all right, title and interest in and to the Site and the Services (including, but not restricted to any AI Blocks created within the Site), and all intellectual property rights therein. The look and feel of the Site and the Services, including any custom graphics, button icons, and scripts are also the property of Levity, and you may not copy, imitate, or use them, in whole or in part, without Levity’s prior written consent. Levity reserves all rights not expressly granted to you in this Agreement, and Levity does not grant any licenses to you or to any other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein.

Customer shall, and hereby does, grant to Levity a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the features, functionality or operation of the Site or Service (“Feedback”). Feedback does not include Customer Content. Feedback shall not create any confidentiality obligation for Levity.

Warranties

The Customer acknowledges that the Predictions are merely assumptions made on the basis of probabilities and that their quality depends in particular on the quality of the Data Points fed in by the Customer. Therefore, Levity explicitly does not warrant the correctness of the Predictions.

Levity shall remedy defects of the Service within a reasonable period of time after proper notification of the defect by the Customer. The defect may also be remedied by means of an Update. As a temporary measure, Levity may show the Customer ways to circumvent occurring defect symptoms. The Customer shall support Levity to a reasonable extent in identifying the cause of the defect.

To the extent that the Customer's contractual use of the Service is wholly or partially deprived due to a defect in title, Levity may, at its own option, also remedy such defect by

providing the Customer with the necessary rights to use the Service in accordance with the Agreement; or
modifying the Service in such a way that the right of the third party no longer prevents the Customer from using it in accordance with the Agreement.

Levity shall give due consideration to the legitimate interests of the Customer.

The Customer shall be solely responsible for the correctness and legality of the Customer Content as well as legal documents generated by the Customer in relation to Levity.

Fees and Payment Terms; Plan Upgrade/Downgrade/Cancellation; Pricing Changes

In exchange for your rights to access the Site and use the Services during the Contract Period, you agree to pay the applicable Subscription Fees to Levity. The indicated Subscription Fees do not include taxes; you will be prompted to provide your country of residency to our payment processor and are responsible for entering correct information and may have to agree to the payment processor’s terms and conditions. Based on your country of origin, our payment processor will add the respective VAT to your Subscription Fees. Subscription Fees are payable in full, in advance, in accordance with your Plan, and are non-refundable and non-creditable. This means that: (i) if you have a monthly Contract Period, you will owe us each month’s payment in advance, before you are allowed to use the Services for that month; (ii) if you have an annual Contract Period with up-front payment terms, you will owe us the entire year’s payment in advance, before you are allowed to use the Services for that year. The Subscription Fees are displayed in USD but you are allowed to pay in all currencies that our payment processor allows you to.

If Levity has granted you access to a free Plan and you upgrade from the free Plan to any paid Plan, we will immediately bill you for the applicable Subscription Fees. There will be no refunds for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. At our own discretion, we may offer discounts for partial months of service if you upgrade/downgrade to another paid Plan.

Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date the amount is due until the date the amount is paid in full. If you are late in paying us, you also agree that, in addition to our rights to suspend your access to the Services, terminate your account(s), downgrade you to a free Plan, and/or pursue any other rights or remedies available to us at law or in equity, you are responsible to reimburse us for any costs that we incur while attempting to collect such late payments.

Levity may use the service of a Merchant of Record (“MoR”), a designated party acting as Levity’s reseller. The MoR shall be responsible for the collection and filing of taxes and ensure legal compliance in various Customer locations. The MoR's name appears on credit card statements, and Customer makes payments to their designated bank account as stated on the invoices issued by Levity. The MoR shall act as a trusted custodian, safeguarding sensitive information and facilitating seamless tax-related operations for both Levity and Customer. Customer acknowledges and agrees to the usage of a MoR.

Indemnification

If a third party asserts any claims against Levity out of or in connection with Customer’s violation of third-party rights (each a “Claim”), Customer agrees to defend, indemnify and hold harmless Levity from and against losses, damages, expenses and costs, including without limitation reasonable court costs and legal fees.

Levity shall, in this case (i) notify Customer in due time of any Claim; (ii) grant Customer, at Customer’s cost, full authority and control of the settlement and defense of the Claim (to the extent possible under applicable law and possible without impairing the effective defense of the Claim; to the extent no full authority and control can be granted, Levity agrees to involve Customer by fully informing Customer of any communication from opposing party, their counsel, and any court, arbitrator, mediator or other similar entity, and by submitting to Customer for prior approval any statement, brief, submission or filing, written or otherwise, to any of the aforementioned); and (iii) reasonably cooperate with Customer in the defense of such Claim, including providing adequate assistance and information.

Limitation of Liability

Levity shall be liable for damages caused vis-a-vis customer based on (i) loss of life, bodily harm, injury, or illness caused by culpable conduct, (ii) intentional or grossly negligent breach of duty by Levity, its statutory representatives, or vicarious agents (Erfüllungsgehilfen), (iii) the German Product Liability Act (Produkthaftungsgesetz) and (vi) a breach of essential contractual obligations. Essential contractual obligations are contractual obligations which must be fulfilled to duly execute the contract; accordingly, the Customer generally relies and may rely on the compliance with these obligations (Kardinalspflicht). In case of a breach of essential contractual obligations, Levity shall only be liable for foreseeable damages typical of the contract, not to exceed, however, the fees payable by Customer to Levity in a given contract year, unless the damages of the Customer are based on loss of life, bodily harm, injury or illness, or on intent or gross negligence.

Except as set out in Section 11.1 above, any and all claims for damages irrespective of the legal grounds shall be excluded. For the avoidance of doubt, the general liability without fault of Levity pursuant to section 536a of the German Civil Code (Bürgerliches Gesetzbuch - BGB) for defects existing upon contract conclusion shall be excluded. The restrictions regarding the exclusion and limitation of liability set forth in section 11.1 shall also apply to the benefit of the statutory representatives and vicarious agents of Levity, in case the Customer asserts any claims directly against them. the provisions of this section do not lead to a change of the burden of proof to the disadvantage of the Customer.

Term, Termination

This Agreement shall commence on the Effective Date and shall continue for the term set out in the Order Form (also referred to as “Initial Term”) unless otherwise terminated as provided in this section.

If not stated differently in the Order Form, each Contract Period will automatically renew for an additional Contract Period of equivalent length (“Renewal Term”), unless and until one party provides written notice to the other at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term that it wishes to terminate the Agreement at the end of the Initial Term or Renewal Term. We reserve the right to modify the fees for the Services at any time upon thirty (30) days’ prior notice to you, provided that the modified fees will not apply until the next Contract Period.

Either party can terminate this Agreement upon notice to the other if the other party breaches terms of this Agreement and fails to cure the breach within fifteen (15) days of receiving written notice of it from the non-breaching party. We reserve the right to terminate this Agreement for cause immediately upon notice to you, and without giving you a cure period, if you breach any of this Agreement relating to our intellectual property (including your compliance with the access grant and any restrictions) or our Confidential Information (defined below).

We can terminate any free Plan that you have subscribed to, at any time and for any reason. We can terminate any paid Plan that you have subscribed to, for any reason, by providing notice to you that we intend to terminate your Plan at the end of the then-current Contract Period.

You can terminate your account(s)/subscription(s) via the process set forth in the “Cancel Subscription” section of your Account Settings on the Site. An email or phone request to terminate your account is not considered cancellation. No refunds will be issued, unless expressly stated otherwise. Any cancellation will take effect only at the end of your then-current Contract Period, and you will continue to owe all Subscription Fees for the duration of your then-current Contract Period. Pro-rata refunds will not be provided. You agree that if you have an annual Contract Period with monthly payment terms: (i) you will still be obligated to pay us the Subscription Fees for the entire annual Contract Period, irrespective of whether you elect to terminate your subscription prior to the end of your then-current Contract Period; and (ii) notwithstanding the foregoing, we reserve the right, at our sole and absolute discretion, to permit you to terminate your subscription without further liability by making a lump-sum payment to us that is equal to the upcoming three (3) months of Subscription Fees that you would otherwise have owed us.

By terminating your account(s)/subscription(s), you will automatically be downgraded to the free Plan. Downgrading your account(s) may cause the loss of Customer Content, features, or capacity of your account(s).

Levity, in its sole discretion, has the right to suspend your ability to use and/or access the Site or the Services, under the following circumstances: (i) for scheduled or emergency maintenance to the Site or the Services, or any part thereof; (ii) if Levity believes that you are using the Site or the Services in violation of this Agreement or applicable law; (iii) if Levity believes that your use of the Site or the Services poses a security risk to us or to any third party; (iv) if required by law enforcement or government agency, or otherwise in order to comply with applicable law or regulation; or (v) if you fail to fulfill your payment obligations hereunder. Levity also reserves the right to temporarily or permanently suspend your ability to access the Services, if Levity determines, in its sole discretion, that you are engaging in abusive or excessively frequent use of the Services.

When this Agreements terminates: (i) you will no longer have the right to use or access the Site or the Services as of the date of termination; (ii) if you owed us any fees prior to such termination, you will pay those fees immediately; and (iii) each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information (as defined in Section 13, below) belonging to the other party.

Confidential Information

"Confidential Information" means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information shall include, without limitation, (a) of both Parties, the terms and conditions of this Agreement (including pricing), provided that either party may disclose the terms and conditions of this Agreement to its potential investors and acquirers on a confidential basis in connection with bona fide due diligence, (b) of Customer, the Customer Content, and (c) of Levity, the Service, Documentation and the AI Model of the Service and its self-optimizations as well as any information on the process and results of a learning phase of the AI Model or its Predictions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

The Receiving Party agrees not to use Confidential Information or disclose, distribute, reverse-engineer or disseminate such Confidential Information except as allowed hereunder or as otherwise expressly agreed in writing by the Disclosing Party. The Receiving Party agrees to restrict access to such Confidential Information to those employees and service providers of the Receiving Party who need to know such information for performing as contemplated hereunder and have agreed to be bound by a confidentiality obligation not less protective than that contained in this Agreement. The Receiving Party shall exercise the same degree of care to prevent unauthorized use or disclosure of the Confidential Information to others as it takes to preserve and safeguard its own confidential information of like importance, but in no event less than reasonable care. At any time upon written request, the Receiving Party shall destroy or return to the Disclosing Party all copies of Confidential Information.

The Receiving Party may access and disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the Receiving Party will, if lawfully permitted to do so, notify the Disclosing Party prior to such access or disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures. Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

Data Protection

Each Party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with all applicable data protection Laws. The Customer shall obtain any necessary consents of third parties, especially as may be required under applicable data protection laws or under applicable professional secrecy obligations, in advance and provide Levity with evidence thereof without undue delay upon reasonable request.

To the extent that Levity has access to or processes any personal data in the provision of the Services, Customer and Levity enter into the LEVITY.AI Data Processing Agreement according to Art. 28 EU General Data Protection Regulation, available under levity.ai/dpa, incorporated by reference into this Agreement.

General Provisions

This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of Germany without reference to conflicts of laws principles. The parties agree that any disputes under the Agreement shall be brought exclusively in the competent courts located in Berlin, Germany. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

You agree that Levity has the right to use your name and logo on the Site or other Levity websites or marketing materials, for the purposes of identifying you as a Levity customer and describing your use of the Services. You also agree that Levity may (but is under no obligation to): (i) issue a press release identifying you as a Levity customer; (ii) inform other potential customers that you are a user of the Services; and (iii) identify you as a customer in other forms of publicity (including, without limitation, case studies, blog posts, and the like.

You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Levity, and any attempted transfer, assignment or delegation without such consent will be void and of no effect. Levity may freely transfer, assign or delegate this Agreement, or its rights and duties under this Agreement, without notice to you. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

You agree that any notice that Levity is required to provide pursuant to this Agreement can be given electronically, which may include an email to the email address you provide to Levity as part of your Registration Data. These notices can be about a wide variety of things, including responding to your questions, requests for additional information, and legal notices. You agree that such electronic notices satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day the email is sent to you, provided that the email is the same as the email address you provided as part of your Registration Data.

You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of the Site and Services, including, without limitation, all applicable export control laws and regulations.

If any portion of this Agreement is held to be unenforceable or invalid, that portion will be enforced to the maximum extent possible, and all other provisions will remain in full force and effect.

Except for payments due under this Agreement, neither party will be responsible for any delay or failure to perform that is attributable in whole or in part to any cause beyond its reasonable control, including, without limitation, acts of God (fire, storm, floods, earthquakes, etc.); civil disturbances; disruption of telecommunications, power or other essential services; interruption or termination of service by any service providers used by Levity to host the Services or to link its servers to the Internet; labor disturbances; vandalism; cable cut; computer viruses or other similar occurrences; or any malicious or unlawful acts of any third party.

We are each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.

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