This AI Addendum forms part of and is subject to the terms of the Order. For the avoidance of doubt, this AI Addendum applies in addition to the Terms.
Defined terms used but not otherwise defined in this AI Addendum have the meaning given to them in the terms at https://eptura.com/terms/tos.
1. DEFINITIONS
1.1. “Aggregated Data” means de-identified information and data regarding the use and operation of the Subscription Services by Customer.
1.2. “AI Incident” means (i) any unsafe, biased or discriminatory Output; (ii) any successful or attempted jailbreak, prompt injection, or model manipulation; (iii) any inadvertent disclosure of Customer Data via model inference; (iv) any material malfunction of an AI System; or (v) any “serious incident” as defined in Article 3(49) of the EU AI Act.
1.3. “AI Systems” means any artificial intelligence or machine learning models, applications, data systems, interfaces, algorithms, or utilities.
1.4. “Input” means any data, information, prompts, materials or Customer Data submitted by or on behalf of Customer or its Users during use of Intelligent Functionality.
1.5. “Intelligent Functionality” means any feature or functionality of the Services which utilizes AI Systems.
1.6 “Output” means any data, information, or materials generated by Intelligent Functionality in response to an Input.
2. CONSENT
2.1. Provision of consent. By entering into an Order which is subject to this AI Addendum, Customer is providing its informed and explicit consent to the enablement and provision of the AI Systems required to deliver Intelligent Functionality. For the avoidance of doubt, this includes consenting to Eptura (and any relevant subprocessors) processing Customer Data, Inputs and Outputs solely as necessary to provide, maintain and support the Intelligent Functionality, but not for the purpose of training or improving any AI Systems, except as expressly permitted in Section 3 below.
2.2. Revocation of consent. Customer may revoke the consent in Section 2.1 at any time, in whole or in part, but acknowledges and agrees that this may materially impact the provision of Intelligent Functionality and that this shall not entitle Customer to any refund of Fees paid or release of Fees that will be payable during the remainder of the Term or termination of the relevant Order or part thereof.
3. AGGREGATED DATA
Customer agrees and acknowledges that Eptura may use Aggregated Data to develop, train, improve, enhance, support and operate AI Systems and the Services, provided that such Aggregated Data does not include Personal Data (as defined in the DPA), does not disclose Customer Confidential Information, and does not identify, and cannot be used to identify, Customer, its Affiliates or Users. Eptura may use such Aggregated Data to generate analytics, benchmarking information, industry trends and usage insights, provided that any such information is derived from data aggregated across multiple customers and does not permit Customer’s data to be isolated or identified.
4. PROPRIETARY RIGHTS
4.1. Retained Rights. Eptura and its licensors reserve all of their right, title, and interest in and to the Intelligent Functionality including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set out herein.
4.2. Customer Data. Customer grants Eptura a non-exclusive, worldwide, transferable, royalty-free, and fully paid license to use Customer Data solely as necessary to provide Intelligent Functionality during the Term. Customer represents and warrants that it has the right and authority to provide Eptura with Customer Data for use in connection with the provision of Intelligent Functionality, including all necessary authorizations and consents to upload, submit, post, publish or transmit Customer Data to Intelligent Functionality.
4.3 Input and Output Ownership and Confidentiality. As between the parties, Customer owns all right, title, and interest in and to its Inputs and Outputs. Eptura hereby assigns to Customer any right, title, or interest it may have in such Outputs, where protected as intellectual property. All Inputs and Outputs shall be Confidential Information belonging to Customer.
5. SECURITY
5.1. Security Measures. Eptura will protect all Customer Data, Inputs, and Outputs processed through Intelligent Functionality in accordance with the same security measures described in the DPA, including encryption, access controls, and monitoring consistent with industry standard practices.
5.2. Incident Notification. Eptura shall provide written notification to Customer without undue delay upon becoming aware of any AI Incident affecting Customer. Such notification shall describe the nature of the AI Incident and the measures taken by Eptura to address the AI Incident. Eptura shall co-operate with any investigation carried out by Customer and support any regulatory reporting obligations that bind Customer.
5.3. Audit. Eptura shall make available to Customer, upon written request, information reasonably necessary to demonstrate Eptura’s compliance with this AI Addendum. If Eptura is unable to provide such information or such information does not demonstrate Eptura’s compliance, Customer may upon written request perform (at its own expense) a compliance audit. Any such audit shall be subject to the following conditions: (i) Customer must give a minimum thirty (30) days’ notice of its intention to audit; (ii) no later than two (2) weeks prior to audit activity, a mutually agreed upon scope and timeline shall be determined; (iii) any independent auditor will be required to sign a non-disclosure agreement as is reasonably required by Eptura prior to the audit; (iv) the audit must be conducted during Eptura’s normal business hours; (v) the audit must be completed as soon as reasonably practicable and in any event within three (3) business days; (vi) the right to audit includes the right to inspect but not copy or otherwise remove any records, other than those that relate specifically and exclusively to the Customer; and, (vii) the audit shall not include penetration testing, vulnerability scanning, or other security tests. Customer may exercise the right to audit no more than once per twelve (12) month period; provided, however, that Customer may conduct additional audits in the event of: (i) an AI Incident involving Customer Data; or, (ii) a request by a Supervisory Authority or any similar regulatory responsible for the enforcement of Law(s) relating to AI in any country or territory. Eptura and Customer shall meet and discuss any audit findings with any remediation activities and timelines to be determined by Eptura in its sole discretion.
6. STATUS OF THE PARTIES
6.1. For the purposes of the EU AI Act, Eptura acts as Provider and, where applicable, Deployer in respect of the AI Systems used to deliver Intelligent Functionality. Customer acts as Deployer in respect of the AI Systems used to deliver Intelligent Functionality.
6.2. Eptura shall provide Customer with such reasonable support and information as Customer reasonably requests to comply with its obligations as a Deployer under the EU AI Act.
7. REPRESENTATIONS & WARRANTIES
7.1. Eptura representations and warranties. Eptura represents and warrants that: (a) its deployment of AI Systems is in accordance with Laws; (b) the Intelligent Functionality shall not knowingly generate content that infringes third-party intellectual property rights; (c) all data used to train, fine-tune, or ground the AI Systems used to provide the Intelligent Functionality has been lawfully acquired and used, and does not include any unlicensed or unlawfully scraped third-party intellectual property, prohibited data sources, or copyleft-contaminated data that would burden Customer’s use of the Outputs; and (d) the Outputs shall not contain any viruses, malware, backdoors, or other malicious code.
7.2. Customer representations and warranties. Customer represents and warrants that: (a) it has the right and authority to provide Eptura with Customer Data which will be utilized by AI Systems in the delivery of Intelligent Functionality; (b) all Inputs will comply with Law(s) and not infringe the intellectual property rights of any third party; and (c) that it will not and will not permit any of its Users to use any Intelligent Functionality or any third party AI System which interoperates with any Services for:; (i) predicting Personal Data (including Sensitive Personal Data (as defined in the DPA)); (ii) any deceptive or misleading activities; or (iii) any other activity which is in breach of Laws.
7.3. Customer acknowledgment. Customer acknowledges and agrees that Intelligent Functionality: (i) involves Customer and its Users interacting with AI Systems; (ii) Intelligent Functionality and AI Systems are not a substitute for human oversight or judgement; (iii) it must disclose to Users when they are interacting directly with AI Systems without human involvement; and (iv) when required by law, it shall provide a means for Users to utilize the relevant feature or functionality without interacting with AI Systems (and Eptura shall support such obligation so far as reasonably possible).
8. THIRD-PARTY SERVICES
Eptura shall have no liability for any third-party services (including those utilizing AI Systems) that Customer uses to generate, upload, submit, post, publish, or transmit Customer Data to the Services. For the avoidance of doubt, this section shall not apply to Eptura’s responsibility for its own AI subprocessors.
9. DISCLAIMER
INTELLIGENT FUNCTIONALITY IS PROVIDED “AS IS” AND EPTURA DOES NOT MAKE ANY WARRANTY AS TO OUTPUTS OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH INTELLIGENT FUNCTIONALITY. OTHER THAN WARRANTIES EXPRESSLY PROVIDED UNDER THIS AI ADDENDUM, EPTURA DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS AND AGREES THAT EPTURA DOES NOT ATTEMPT TO VERIFY THE ACCURACY OR COMPLIANCE WITH LAWS OF ANY OUTPUT, AND CUSTOMER ASSUMES THE SOLE RISK FOR USE OF OUTPUTS. CUSTOMER SHOULD NOT RELY ON ANY FACTUAL ASSERTION IN AN OUTPUT WITHOUT INDEPENDENTLY FACT CHECKING ITS ACCURACY. ANY OUTPUT THAT APPEARS ACCURATE BECAUSE OF ITS DETAIL OR SPECIFICITY MAY STILL CONTAIN MATERIAL INACCURACIES. OUTPUTS MAY NOT ACCOUNT FOR EVENTS OR CHANGES TO UNDERLYING FACTS OCCURRING AFTER AI SYSTEMS WERE TRAINED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM EPTURA OR THROUGH INTELLIGENT FUNCTIONALITY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NEITHER EPTURA NOR ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES WILL BE LIABLE AT LAW OR EQUITY FOR ANY CLAIM (INCLUDING THIRD-PARTY CLAIMS), DAMAGE, OR LOSS ARISING FROM OR RELATING TO CUSTOMER’S USE OF INTELLIGENT FUNCTIONALITY. FOR THE AVOIDANCE OF DOUBT, ANY INDEMNITY PROVIDED BY EPTURA FOR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THE TERMS OR ANY OTHER AGREEMENT SHALL NOT APPLY TO INTELLIGENT FUNCTIONALITY. NOTHING IN THIS AI ADDENDUM SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.