PLEASE READ THIS TERMS OF USE AGREEMENT. These Terms of Use (“Terms”) govern your use of the Invoke AI, Inc. (“Invoke”, “our”, “us” and “we”) Site located at https://www.invoke.ai and https://www.invoke.com (the “Site”) and online services available, accessible, or enabled via the Site (collectively with the Site, the “Services”). THESE TERMS GOVERN THE USE OF THE SERVICES AND APPLY TO ALL USERS VISITING THE SITE AND/OR USING THE PLATFORM, BUT DO NOT GOVERN THE USE OF INVOKE’S OPEN SOURCE SOFTWARE REPOSITORY MAINTAINED ON GITHUB. BY ACCESSING OR USING THE SITE IN ANY WAY, USING THE SERVICES, COLLABORATING ON A PROJECT ON THE SERVICES, CLICKING ON THE “I ACCEPT” BUTTON (OR SIMILAR), OR REGISTERING FOR AN ACCOUNT, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH INVOKE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE SITE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICES.
IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT INVOKE’S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU OPT OUT OF THE AUTOMATIC RENEWAL OF SERVICE TERM / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9.3(B) (AUTOMATIC RENEWAL) BELOW.
SECTION 16 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND INVOKE. AMONG OTHER THINGS, SECTION 16 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 16 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 16) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 16.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control to the extent of the conflict, solely with respect to such Service. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.” PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY INVOKE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Invoke will make a new copy of these Terms Agreement available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. We will also update the “Last Updated” date at the top of these Terms. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. USE OF THE PLATFORM, SITE, AND SERVICES.
The Platform, the Site, the Services, and the information and content made available on the Site and through the Services (as these terms are defined herein) are the sole property of Invoke and its licensors.
1.1 License to the Services. Subject to your ongoing compliance with this Agreement, Invoke grants you a limited, non-exclusive, non-sublicensable and nontransferable license to access and use the Services in accordance with their designed functionality for your personal or internal business purposes. The Services consist of Invoke’s hosted technology solution designed to allow users to transform text descriptions and uploaded assets into new visual media (the “Platform”), edit visual media using a combination of proprietary and publicly available artificial intelligence technologies, and certain tools and services associated therewith. In accordance with the functionality of the Services, you may be able to share certain Content (as defined below) with other Registered Users and use the Services to develop, modify, and improve such Content jointly (“Collaborate”).
1.2 Use of AI. Our Services utilize certain publicly available artificial intelligence and deep learning platforms, algorithms and models (“Models”) to generate certain visual media (“Outputs”) based on the queries or other inputs entered by a Registered User (“Inputs”). You acknowledge that the Outputs are based on your Inputs, as well as Models and information, and, accordingly, all Outputs are provided “as is” and with “all faults”, and Invoke makes no representations or warranties of any kind or nature with respect to any Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. Furthermore, Invoke will have no liability for the unavailability of any Models, or any third party’s decision to discontinue, suspend or terminate any Models. You understand that you are required to maintain the license in any distribution of Models, that additional license requirements may apply to certain Models, and will be included in information for such Models as part of your use of the Services and that you must review and comply with such requirements for the Models used.
1.3 Updates. You understand that the Services are evolving. You acknowledge and agree that Invoke may update the Services, including Beta Products, with or without notice to you. You may need to update third-party software from time to time in order to use the Services.
1.4 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof, including the Site; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Invoke except as expressly permitted herein; (c) you shall not use any metatags or other “hidden text” using Invoke’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services, including the Models, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to this Agreement. Invoke, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of any Services terminates the licenses granted by Invoke pursuant to this Agreement.
1.5 Invoke Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Invoke and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Site (“Account”), or has a valid account on a social networking service, such as Google (“SNS”) through which the user has connected to the Services (each such account, a “SNS Account”). Invoke offers two types of Accounts: (a) an “Individual Account,” where a Registered User may use the Services as an individual for his or her personal use; and (b) an “Enterprise Account,” where a Registered User may use the Services as an individual working for a company, business or organization that has signed a separate agreement with Invoke or its internal business purposes.
2.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you may link your Account with SNS Accounts by allowing Invoke to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant Invoke access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating Invoke to pay any fees or making Invoke subject to any usage limitations imposed by such SNS. By granting Invoke access to any SNS Accounts, you understand that Invoke may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or Invoke’s access to such SNS Account is terminated by the SNS, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND INVOKE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. Invoke makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Invoke is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Site, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Invoke immediately of any unauthorized use of your password or any other actual or suspected breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Invoke has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Invoke has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account or use Services if your Account has been previously removed by Invoke, or if you have been previously banned from any of the Services.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Invoke.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Services, including but not limited to, a mobile device that is suitable to connect with and use Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Services.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Invoke, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Services (“Your Content”), and that you and other Registered Users of the Services, and not Invoke, are similarly responsible for all Content that you and they Make Available through Services (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Invoke has no obligation to pre-screen Content (including, but not limited to, User Content), although Invoke reserves the right in its sole discretion to pre-screen, refuse or remove any Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content on or through the Services.
3.3 Storage. Unless expressly agreed to by Invoke in writing elsewhere, Invoke has no obligation to store any of Your Content that you Make Available on Services. Invoke has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
4. OWNERSHIP.
4.1 Services. Except with respect to Your Content and User Content, you agree that Invoke and its suppliers own all rights, title and interest in Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, and Invoke software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
4.2 Trademarks. Invoke and all related graphics, logos, service marks and trade names used on or in connection with any Services or in connection with the Services are the trademarks of Invoke and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Services are the property of their respective owners.
4.3 Your Content. Invoke does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Services, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to Your Content).
4.4 License to Your Content. Subject to any applicable Account settings that you select, you grant Invoke a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to: (i) use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Services to you and to our other Registered Users; and (ii) use Your Content to improve the Services and Invoke’s related products and services. You further grant any Registered User with whom you choose to Collaborate a fully paid, royalty-free, revocable, worldwide, non-exclusive right and license to use, modify, adapt, publicly perform, and publicly display Your Content in accordance with your Account settings and the functionality of the Services. Please remember that any of Your Content that you submit to any “public” or "shared" area of the Services may be visible to other Registered Users or other visitors to the Site. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Invoke, are responsible for all of Your Content that you Make Available on or in Services. Any Content posted by you may not contain content that violates Invoke’s Acceptable Use Policy, as determined by Invoke in its sole discretion.
4.5 Feedback. You agree that submission of any ideas, suggestions, preferences, documents, and/or proposals to Invoke, whether through the Site or any other (“Feedback”) is at your own risk and that Invoke has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Invoke a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Invoke’s business.
5. USER CONDUCT.
5.1 General. As a condition of use, you agree not to use Services, Models or Outputs for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) either (a) take any action or (b) Make Available any Content on or through Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane, each as determined in Invoke’s sole discretion; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Invoke’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Invoke; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Services, introducing viruses, worms, or similar harmful code into Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Services.
5.2 Acceptable Use. In connection with your access to and use of the Services, you will not, and will ensure that your use of the Services, Models or Outputs and/or Your Content that you Make Available on the Services does not: (a) violate any law, regulation, or court order; (b) violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party; (c) submit, post, share, or communicate anything that is for the purpose of: (a) exploiting, harming or attempting to exploit or harm minors in any way; (b) generating or disseminate verifiably false information and/or Content with the purpose of harming others; (c) generating or disseminating personally identifiable information that can be used to harm an individual; (d) defaming, disparaging or otherwise harassing others; (e) using fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation; (f) intending to or having the effect of discriminating against or harming individuals or groups based on online or offline social behavior or known or predicted personal or personality characteristics; (g) exploit any of the vulnerabilities of a specific group of persons based on their age, social, physical or mental characteristics, in order to materially distort the behavior of a person pertaining to that group in a manner that causes or is likely to cause that person or another person physical or psychological harm; (h) intending to or having the effect of discriminating against individuals or groups based on legally protected characteristics or categories; (i) providing medical advice and medical results interpretation; or (j) generating or disseminating information to be used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g., by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily-targeted use). You are prohibited from generating inappropriate and unacceptable content, such as explicit adult content, gore, or other visually disturbing content, as determined by Invoke in its sole discretion.
6. MONITORING AND ENFORCEMENT. Invoke may, but is not obligated to, monitor or review Services and Content at any time. Although Invoke does not generally monitor user activity occurring in connection with Services or Content, Invoke reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Invoke; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact on or through the Services; provided, however, that Invoke reserves the right, but has no obligation, to intercede in such disputes. You agree that Invoke will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Services may contain User Content provided by other Registered Users. Invoke is not responsible for and does not control User Content. Invoke has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
8. THIRD-PARTY SERVICES. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Invoke. Invoke is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Invoke provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. FEES AND PURCHASE TERMS.
9.1 Third-Party Service Provider. Invoke uses Stripe, Inc. and its affiliates as the third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). By paying for any portion of the Services, you shall provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consent and authorize Invoke and Stripe to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
9.2 Payment. You shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. You must provide Invoke and/or our Third-Party Service Provider with accurate and up-to-date payment information, as a condition to purchasing the Service. Your agreement with your payment provider (e.g., card-issuing bank, PayPal, etc.) (each, a “Payment Provider”) governs your use of your payment method, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Invoke and/or our Third-Party Service Provider with your payment information, you agree that Invoke and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Invoke hereunder and that no additional notice or consent is required. You shall immediately notify Invoke of any change in your payment information to maintain its completeness and accuracy. Invoke reserves the right at any time to change its prices and billing methods in its sole discretion. You will not be charged a higher Fee without notifying you of any changes to the Fees. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Invoke and/or our Third-Party Service Provider or our inability to collect payment from your Payment Provider constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
9.3 Subscriptions. If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee for such Subscription will be billed at the start of the Subscription and at regular intervals in accordance with your elections at the time of purchase. You may also purchase usage hours “a la carte,” in addition to the usage hours already provided as part of your Subscription, Invoke reserves the right to change the timing of our billing. Invoke reserves the right to change the pricing at any time. If changes to the Subscription price occur, Invoke will use commercially reasonable efforts to update you. Any such changes shall be effective immediately. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 9.3(b)(i) (Cancelling Subscriptions Purchased via Invoke ).(a) Service Subscription Fees. You shall be responsible for payment of the applicable Subscription fee for each Service (each, a “Service Subscription Fee”) at the time you create your Account and select your payment package (each, a “Subscription Service Commencement Date”). Invoke is not obligated to provide the Services to you until Invoke accepts your order by a confirmatory email or other appropriate means of communication.(b) Automatic Renewal. If you purchase a Subscription, your Subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Invoke ’s then-current price for such Subscription. You agree that your Subscription is subject to this automatic renewal feature unless you cancel your Subscription as set forth below in subsection 9.3(b)(i) (Cancelling Subscriptions Purchased via Invoke ). If you elect to purchase a Subscription from Invoke, then by subscribing, you authorize Invoke to charge your Payment Provider now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Invoke does not receive payment from your Payment Provider, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Invoke may either terminate or suspend your Subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).(i) Cancelling Subscriptions Purchased via Invoke. If you purchased your Subscription directly from Invoke, you may cancel your Subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Invoke that your Subscription will be automatically renewed, you will have thirty (30) days from the date of Invoke ’s notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must contact Invoke at support@invoke.ai, or log in and use the “Cancel Plan” button on your “Manage Your Subscription” settings page. (ii) Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period, and any additional hours purchased for use with the Subscription will expire at the end of the then-current Subscription period.
9.4 Free Trials and Other Promotions. Certain Subscription offerings may be available on a free trial basis (a “Free Trial”), the period of which will be communicated to you via the Services. Unless otherwise expressly set forth, your use of any such Subscription offerings will expire at the end of the Free Trial, and any further use of such offerings is prohibited unless you purchase a Subscription to such offerings. To the extent expressly indicated at the time of signing up for a Free Trial, your Free Trial will automatically convert to a paid Subscription and your Payment Provider will be charged for the applicable Subscription at the end of your Free Trial unless you cancel the Subscription in accordance with Section 9.3 before the Free Trial ends. If you fail to cancel the Subscription before the Free Trial ends, you will be responsible for payment for the full term of the Subscription period. Unless otherwise expressly stated, any free trial or other promotion that provides a registered user level access to the Services must be used within the specified time of the trial.
9.5 No Refunds. THERE ARE NO REFUNDS FOR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SERVICES AND WE ARE NOT OBLIGATED TO PROVIDE ANY CREDITS FOR PARTIALLY USED SUBSCRIPTIONS.
9.6 Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If Invoke determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Invoke shall collect such Sales Tax in addition to the Fees. If any Services, or payments for any Services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Invoke, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Invoke for any liability or expense Invoke may incur in connection with such Sales Taxes. Upon Invoke ’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.7 Withholding Taxes. You shall make all payments of Fees to Invoke free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Invoke shall be your sole responsibility, and you shall provide Invoke with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
10. INDEMNIFICATION. You agree to indemnify and hold Invoke, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Invoke Party” and collectively, the “Invoke Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, the Services, whether in whole or in part; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Invoke reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Invoke in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to Services.
11. DISCLAIMERS OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. INVOKE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SITE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION BETA PRODUCTS. (a) INVOKE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE OUTPUTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. INVOKE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INVOKE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.(e) FROM TIME TO TIME, INVOKE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT, INCLUDING BETA PRODUCTS. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT INVOKE ’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT INVOKE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD INVOKE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT INVOKE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. INVOKE MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. INVOKE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
11.4 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Invoke to monitor such materials and that you access these materials at your own risk.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL INVOKE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT INVOKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (e) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF AN INVOKE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN INVOKE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN INVOKE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, INVOKE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO INVOKE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN INVOKE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A INVOKE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A INVOKE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content. EXCEPT FOR INVOKE ’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN INVOKE ’S PRIVACY POLICY, INVOKE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN INVOKE AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Invoke ’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Invoke by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Invoke’s Copyright Agent for notice of claims of copyright infringement is as follows: Invoke, Inc., Attn: Copyright Agent, 99 Wall Street #5978 New York, NY 10005.
14. TERM AND TERMINATION.
14.1 Term. This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Services, unless terminated earlier in accordance with this Agreement.
14.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that this Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted this Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with this Agreement.
14.3 Termination of Services by Invoke. Invoke has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations shall be made in Invoke’s sole discretion and that Invoke shall not be liable to you or any third party for any termination of your Account.
14.4 Termination of Services by You. If you want to terminate the Services provided by Invoke, you may do so by closing your Account for all of the Services that you use.
14.5 Effect of Termination. Termination of any Service may include removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of the Services may involve deletion of Your Content associated therewith from our live databases. Invoke will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
14.6 No Subsequent Registration. If this Agreement is terminated for cause by Invoke or if your Account or ability to access the Services, is discontinued by Invoke due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access any of the Services through use of a different email account or otherwise.
15. INTERNATIONAL USERS. Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Invoke intends to announce such Services or Content in your country. Services are controlled and offered by Invoke from its facilities in the United States of America. Invoke makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
16. ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Invoke and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
16.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Invoke agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Invoke may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Invoke may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
16.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Invoke. If that occurs, Invoke is committed to working with you to reach a reasonable resolution. You and Invoke agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Invoke therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via video conference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Invoke that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@invoke.ai or regular mail to our offices located at Invoke, Inc., 99 Wall Street #5978 New York, NY 10005. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.3 Waiver of Jury Trial. YOU AND INVOKE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Invoke are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4 Waiver of Class and Other Non-Individualized Relief. YOU AND INVOKE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Invoke agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Invoke from participating in a class-wide settlement of claims.
16.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Invoke agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Invoke otherwise agree, or the Batch Arbitration process discussed in Section 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Invoke agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
16.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
16.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 16.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 16.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 16.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
16.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Invoke need to Invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Invoke agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Invoke by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Invoke. You and Invoke agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
16.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@invoke.ai. within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.11 Invalidity, Expiration. Except as provided in Section 16.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Invoke as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
16.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Invoke makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Invoke at legal@invoke.ai, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Invoke will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Invoke may take place via electronic means, whether you visit Services or send Invoke e-mails, or whether Invoke posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Invoke in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Invoke provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Invoke’s prior written consent. Invoke may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure. Invoke shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a force majeure event occurs that affects Invoke’s performance of its obligations under this Agreement: (a) Invoke will contact you as soon as reasonably possible to notify you; and (b) Invoke’s obligations under this Agreement will be suspended and the time for Invoke’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel any Services materially impacted by a force majeure event which has continued for more than 30 days. To cancel please contact Invoke.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at the address provided in Section 7. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5 Governing Law and Jurisdiction. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
17.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Invoke agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Fulton County, Georgia.
17.7 Notice. Where Invoke requires that you provide an e-mail address, you are responsible for providing Invoke with your most current e-mail address. In the event that the last e-mail address you provided to Invoke is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Invoke’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Invoke at the following address: Invoke, Inc., 99 Wall Street #5978 New York, NY 10005. Such notice shall be deemed given when received by Invoke by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.10 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Invoke are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Invoke products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
