Mighty AI Customer Terms and Conditions
Last Updated: May 4, 2018
1. Welcome and Services
This Customer Terms and Conditions (this “Agreement”) contains the legal terms that govern your use of Mighty AI’s services. Mighty AI, Inc. (“Mighty AI,” “we,” “our” or “us”) operates an on-demand data annotation platform. We offer a mobile application through which targeted people (“Fives”, who are independent service providers to us) complete Tasks (as defined in Section 3) in their spare time. To the extent applicable, we may also complete the Tasks by utilizing computer vision models, computer vision algorithms, machine learning models, machine learning methods, proprietary software, processes and other methods (collectively, “Mighty AI Tools”) to perform the Tasks and/or supplement the completion of the Tasks by the Fives. Our platform (including without limitation the Mighty AI Tools), related mobile application functionality and related services are, collectively, “Services.”
By signing a Statement of Work that incorporates this Agreement (an “SOW”), you agree to be legally bound to this Agreement between you (“Customer,” “you,” or “your”) and Mighty AI. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this Agreement, in which case the terms “Customer,” “you” and “your” refer to that entity.
This Agreement contains provisions requiring the use of binding arbitration on an individual basis to resolve disputes, and waiving the right to a jury trial and the right to bring a class action. Please review this Agreement carefully before using the Services.
2. Account Creation
Prior to submitting any Tasks to be completed, you may be required to register and create an account with us (an “Account”) and make a deposit to establish an Account balance. You agree to provide Mighty AI with true and accurate information, and to update that information immediately to the extent it changes in any way. At the time of registration, you will be required to establish a password for your Account. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third parties, and you are solely responsible for any use of, or action taken under, your password through the Account. If your password becomes compromised, you must change your password.
3. Customer Materials and Task Results
You can request performance of a task (“Task”) via your use of the Services. Examples of Tasks include image collection (without annotation), labeling or annotating an image to identify specific items contained in the image, and rating an image or otherwise annotating data that you provide. Mighty AI may assign one or more Fives to perform the Tasks, use Mighty AI Tools or employ some combination of Fives and Mighty AI Tools to perform the Tasks which will result in the creation of a tangible deliverable which will be delivered to you (“Task Result”).
With respect to content, information, or other materials you provide to Mighty AI necessary to complete a Task (“Customer Materials”), you grant Mighty AI a non-exclusive, fully paid, royalty-free, worldwide right and license, with a right to sublicense to the Fives, to exploit and use the Customer Materials in any manner necessary for Mighty AI to render the Services to you.
You represent and warrant that you have the right to grant the foregoing license and that the Customer Materials do not violate or infringe the rights of any third party, including, but not limited to, all intellectual property rights, rights of publicity and rights of privacy. Mighty AI makes and will make no claim of ownership over the Customer Materials as they are provided by the Customer to Mighty AI. You further represent and warrant that any instructions or directions that Mighty AI carries out or follows at your request pursuant to the performance of a Task will not violate or infringe the rights of any third party or any applicable law.
4. Ownership; Proprietary Rights
You own all rights, title and interest in and to the Customer Materials and Task Results produced in connection with the Services rendered pursuant to this Agreement.
Customer acknowledges and agrees that it is possible that the same or similar Task Results may result from the performance of Tasks requested by different customers and that it shall have no right, title or interest in or to such Task Results.
In addition to the rights granted in Section 3, Customer grants Mighty AI a non-exclusive, fully paid, royalty-free, worldwide right and license, to internally use any Customer Materials and Task Results, aggregated with other data and materials in our possession, or data and materials derived from performing Services for you and similar services for other customers, for the purpose of improving our methods, processes and the Mighty AI Tools. We will ensure that your Customer Materials will not be used to provide Services directly to any other customers.
In connection with Mighty AI’s provision of Services, Mighty AI will use, exploit and rely upon the Mighty AI Tools, its software, API’s, mobile applications, processes, inventions, patents, trade secrets, trademarks and copyrights, including ideas, concepts and know-how, developed or obtained by us or for us either prior to or during the term of this Agreement (collectively, “Mighty AI IP”). Customer acknowledges that Mighty AI retains all rights in the Services and Mighty AI IP (and any improvements thereto), including all copyright, patent and other intellectual property or proprietary rights therein. No title to or ownership of Mighty AI IP (including any derivative works) or any associated intellectual property or proprietary rights are transferred to Customer by this Agreement, and no licenses to any Mighty AI IP are granted to Customer. No rights or licenses are granted to Customer hereunder other than as expressly set forth herein.
5. Improvements; Feedback
Mighty AI encourages its customers to comment on the Services and provide suggestions for improving them. Customer agrees that all such comments and suggestions provided will be non-confidential and that Mighty AI will own all rights, title and interest in such comments and suggestions, and any improvements made to the Services or the Mighty AI IP based on such feedback (“Improvements”), including but not limited to the right to use and incorporate them into the Services without payment or any other obligations to you.
To the extent, if any, that ownership of such Improvements does not automatically vest in Mighty AI by virtue of this Agreement or otherwise, Customer hereby irrevocably assigns to Mighty AI all rights, title, and interest which Customer may have in such Improvements. For greater certainty, the Improvements include but not limited to the derivative works, models, modifications, enhancements, templates, methods, algorithms, logic or processes of any nature developed or implemented by or for Mighty AI.
The Services will be provided according to the pricing schedule and payment terms set forth in the applicable SOW. Customer agrees to pay all fees due with respect to Customer’s use of the Services. In the event of non-payment, Mighty AI will have the right, with or without notice, to immediately suspend or terminate Customer’s access to and use of the Services. If Mighty AI is required to use a collection agency or attorney to collect money owed by Customer, Customer agrees to pay the reasonable costs of collection. These collection costs include, but are not limited to, collection agency’s fees, reasonable attorneys’ fees and court costs. Customer and Mighty AI agree to use commercially reasonable efforts to timely resolve any billing disputes.
All Confidential Information of a party will be held in confidence by the other party to the same extent it protects its own Confidential Information, but in no event using less than a reasonable degree of care, and may only be used in relation to each party’s obligations under this Agreement. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form without the other party’s prior written consent. Upon request by a party, the other party will destroy any Confidential Information of the requesting party in its possession or control. “Confidential Information” shall mean any non-public information that a party discloses or provides to the other party in performance of this Agreement, including Mighty AI Tools, any other Mighty AI intellectual property, methods or processes by which Mighty AI captures Tasks and creates Task Results, business or financial data and plans, strategies, and customer or user data (including, without limitation, any personal identifying information or aspects of the past, present or prospective user and/or customers). Confidential Information does not include information that is: (a) known to the receiving party prior to its receipt from the disclosing party without a limitation or obligation of confidentiality under another agreement; (b) independently developed by receiving party without use of any Confidential Information, unless such information or data is developed in accordance with the terms of this Agreement; (c) in the public domain at the time of disclosure other than as a result of disclosure by receiving party; or (d) received from a third party with a legal or contractual right to disclose such information or data.
Notwithstanding the foregoing, you acknowledge and agree that as a result of exposure to Customer’s Confidential Information in the course of providing the Services, Mighty AI may gain or enhance general knowledge, skills and experience (including ideas, concepts, methods, processes, know-how and techniques) (collectively, “Residual Knowledge”). You acknowledge and agree that Mighty AI’s subsequent use of such Residual Knowledge as retained in the unaided memories of Mighty AI’s employees, contractors, or other affiliated personnel, without reference to Confidential Information in written, electronic, or other fixed form, shall not constitute a breach of this Agreement.
You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of any Mighty AI Tools, other Mighty AI software, products, models, prototypes, methods, processes or other items provided or made available to you by Mighty AI.
8. Publicity; Trademarks
Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may include the name and logo of the other party in lists (including on its website) of customers, clients or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. In addition, Mighty AI may use the name, logo, or mark of Customer as necessary for Mighty AI to provide the Services. Except as set forth herein, neither party may use the trademarks or trade names of the other party without the prior written consent of the other party.
Customer will indemnify, defend and hold harmless Mighty AI and its employees, contractors, directors, agents and representatives (“Mighty AI Indemnitees”) from and against any and all third party claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) based upon, relating to or arising out of (i) any claim that the Customer Materials violate or infringe upon the rights of any third party, or that Customer does not have the necessary right to provide the Customer Materials to Mighty AI or Fives and (ii) any claim that Customer violated any applicable law. Mighty AI will indemnify and hold harmless Customer and its employees, contractors, directors, agents and representatives (“Customer Indemnitees”) from and against any and all third party claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) based upon, relating to or arising out of any third party claim that (a) the Services provided by Mighty AI infringe the intellectual property rights of any third party, unless such infringement is caused by Customer’s breach described in (i) and (ii) above, or (b) any claim that Mighty AI violated any applicable law.
10. Limitation on Liability; Disclaimer of Warranties
Other than with respect to any claims for breach of a party’s confidentiality obligations, neither party will have any liability to the other party for any special, indirect, incidental or consequential damages, or lost profits.
Except as specifically provided in this Agreement, neither party makes any representations or warranties, express or implied, as to any matter, Services, Task Results related to this Agreement. The parties acknowledge and agree that Mighty AI’s provision of the Services provided under this Agreement is expressly provided on an “as is” basis with no warranties, including, but not limited to, any implied warranties arising out of any course of dealing, custom or usage of trade, merchantability, fitness for particular purpose or non-infringement. Mighty AI’s maximum liability to Customer will be the total amount of fees paid or payable to Mighty AI under this Agreement.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
11. Term and Termination
This Agreement is effective upon your acceptance of this Agreement and will remain in full force and effect until terminated in accordance with this Agreement. Either party may terminate this Agreement or an applicable SOW (unless the SOW describes a definite term) for convenience upon thirty (30) days’ prior written notice to the other party. If either you or Mighty AI terminates this Agreement or an applicable SOW for convenience, or if Might AI terminates this Agreement as a result of your breach of the Agreement, you will remain responsible for any compensation owed to Mighty AI for Services rendered and completed Tasks through the termination date. Upon a termination for convenience by Mighty AI, your Account balance, less any fees due Mighty AI, will be automatically refunded to Customer within fifteen (15) business days following termination. Either party may terminate this Agreement or an applicable SOW for material breach or default upon seven (7) days’ written notice to the other party if such breach or default remains uncured at the expiration of the seven day period. In any case, Sections 4 through 11, 13 and 14 of this Agreement will survive any expiration or termination.
12. DMCA/Copyright Policy
Mighty AI respects copyright law and expects its Customers and users to do the same. It is Mighty AI’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Mighty AI’s Copyright Policy at https://mty.ai/copyright for further information.
13. Legal Disputes; Mandatory Individual Arbitration; Class Action/Jury Trial Waiver
13.1 Informal Resolution of Dispute. If a dispute arises between Mighty AI and you, our goal is to resolve the dispute quickly, cost-effectively and in an informal manner. However, in the unlikely event that we are unable to resolve any dispute in this manner, the provisions of this Section 13 shall apply. Please read this provisions carefully. They affect your rights and will have a substantial impact on how claims you and we have against each other are resolved.
13.2 Agreement to Arbitrate. Except if a Claim is excepted from arbitration as set forth in Section 13.6, you agree that any and all disputes or claims at law or equity that have arisen or may arise between you and Mighty AI relating in any way to or arising out of this or previous versions of the Agreement or your use of or access to Services (each a “Claim”) shall be resolved exclusively through final and binding arbitration on an individual basis. The Federal Arbitration Act governs the interpretation and enforcement of the provisions applicable to these arbitration provisions.
13.3 Waiver of Jury Trial; Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND MIGHTY AI WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. YOU AND MIGHTY AI AGREE THAT EACH OF US MAY BRING A CLAIM AGAINST THE OTHER ONLY THROUGH ARBITRATION AND ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MIGHTY AI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
13.4 Arbitration Procedures. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of these arbitration provisions, or of this Agreement, including, but not limited to, any claim that all or any part of these arbitration provisions or this Agreement is void or voidable.
The arbitration will be conducted by a single arbitrator by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by these arbitration provisions. The arbitration will be conducted in King County, Washington; provided, however, at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, the arbitration may be conducted by telephone or by written submission.
The arbitrator will apply internal laws of the State of Washington consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
13.5 Costs of Arbitration In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Mighty AI will pay as much of your filing and hearing administrative fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith.
13.6 Small Claims Court; Exceptions to Mandatory Arbitration Notwithstanding anything to the contrary in these arbitration provisions, either you or Mighty AI may bring an individual action in the small claims court located in King County, Washington or the county where you reside provided the Claim is one that qualifies to be heard in such court. Furthermore, nothing in these arbitration provisions shall prevent either party from (i) seeking injunctive or equitable relief from any court of competent jurisdiction as necessary to prevent the actual or threatened infringement or misappropriation of that party’s intellectual property rights; (ii) pursuing a Claim seeking to enforce or protect the validity of either party’s intellectual property rights; (iii) or pursuing a claim related to, or arising from, allegations of theft or piracy. In addition, these arbitration provisions do not prevent you from bringing your dispute or claim to the attention of any federal, state, or local government agency that has jurisdiction over the subject matter if any claim you may have as provided applicable law.
13.7 Severability With the exception of any of the provisions in Section 13.3 of these arbitration provisions (“Waiver of Jury Trial; Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of these arbitration provisions is invalid or unenforceable, the other parts of these arbitration provisions shall still apply. If an arbitrator or court decides that any of the provisions in Section 13.3 of these arbitration provisions (“Waiver of Jury Trial; Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then Sections 13.2, 13.3, 13.4, 13.5 and 13.6 shall be null and void, but all other sections of this Agreement will continue to apply.
14. General Provisions
14.1 Applicable Law; Venue. This Agreement is governed by the laws of the State of Washington, without regard to principles of conflict of laws. Subject to the Arbitration Agreement above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with this Agreement will be brought exclusively in the federal or state courts located in King County, Washington, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
14.2 Assignment. This Agreement may not be assigned in whole or in part by Customer without the prior written consent of Mighty AI except in the event of a change of control, reorganization, recapitalization or sale of at least a majority of its assets or outstanding voting securities. Mighty AI may freely assign this Agreement without Customer’s consent.
14.3 Severability. Subject to Section 13.7, if any provision of this Agreement, or the application thereof under certain circumstances, is held to be invalid or unenforceable, the remaining provisions of this Agreement, or the application of such provision under other circumstances, shall remain in full force and effect, to be read and construed as if the invalid or unenforceable provisions were deleted.
14.4 Entire Agreement. This Agreement, together with any applicable SOW, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written negotiations, commitments, agreements, and understandings dealing with the subject matter hereof. In the event of a conflict between the provisions of this Agreement and an applicable SOW, the provisions of the SOW shall govern.
14.5 Modification. We may modify the Agreement at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Agreement on our website or through other communications. It’s important that you review the Agreement whenever we modify it because if you continue to use the Services after we have posted the modified Agreement on our website, you are indicating to us that you agree to be bound by the modified Agreement. If you don’t agree to be bound by the modified Agreement, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
14.6 No Waiver. Mighty AI will not be considered to have waived any of its rights or remedies, or portion thereof, unless the waiver is in writing and signed by Mighty AI. Mighty AI’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Mighty AI’s right to subsequently enforce such provision or any other provisions of this Agreement.
14.7 Force Majeure. No party shall be liable for any failure or delay in its performance due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, fire, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet or other wireless networks, provided that the delayed party (i) gives the other party prompt notice of such cause, and (ii) uses its commercially reasonable efforts to promptly correct such failure or delay in performance.