LuLu Terms of Use

Terms of Use

Effective Date: February 12, 2025

These Terms of Use (these “Terms”) apply to the use of the ZEST AI proprietary large language model LuLu (“Lulu”), along with any associated software applications, websites, tools and documentation, but excluding any third-party offerings (all together, “Services”), by the customer specified on the Order Form (the “Customer”). These Terms form an agreement between Customer and ZestFinance, Inc. d/b/a ZEST AI, a Delaware corporation with offices located at 3900 West Alameda Avenue, Suite 1600, Burbank, CA 91505 (“ZEST AI”, “we” or “us”), and set forth the terms and conditions by which Customer may access and use the Services. By accessing and using the Services, Customer agrees to be bound by these Terms. 

1.     LuLu 

  1. Services. LuLu was developed using proprietary, open source, and other third-party software, to be accessed by Customer via an Interface (as defined herein). Customer’s use of the Services, including, without limitation, the Inputs (as defined herein) provided, and the Outputs (as defined herein) generated, is governed by these Terms, including ZEST AI’s applicable policies, as made available to Customer via the Interface (collectively, the “ZEST AI Policies”), which policies are incorporated herein and may be updated from time to time by ZEST AI.
  2. License; Registration. Subject to these Terms, ZEST AI grants Customer and its Authorized Users (a defined herein) a non-transferable, non-exclusive, revocable, personal, limited license to use and access the Services. Customer will need to register for an account and provide certain information about Customer and its Authorized Users (the “Customer Account”). Customer must provide accurate and complete information to register to use the Services. The Services may not be accessed or used by more than the maximum number of Authorized Users, as set forth in the Order Form. Only Authorized Users may access and use the Services. Authorized Users are prohibited from sharing their login information. Customer is responsible for maintaining the confidentiality of login information and is fully responsible for all activities that occur under the Customer Account. Customer agrees to immediately notify ZEST AI of any actual or suspected unauthorized use of the Customer Account.
  3. Permitted Purpose. Customer and Authorized Users may use the Services solely in accordance with these Terms and the ZEST AI Policies for Customer’s own internal business purposes (the “Permitted Purposes”). In no event may Customer use the Services for any commercial purpose.
  4. Restrictions. Customer acknowledges that the Services involve the use of generative artificial intelligence technology for information searching and presentation purposes. Customer shall not use the Services for the purpose of making, granting, or taking any adverse action decisions with respect to a consumer’s account or loan application. Customer shall take no action as to any individual consumer as a result of the Outputs received from the Services. ZEST AI is not responsible or liable for any actions taken or not taken by Customer as a result of its use of the Services, including any Output, and Customer hereby waives and disclaims all claims against ZEST AI arising from or in connection with any actions taken or not taken by Customer as a result of its use of the Services, including any Output. Furthermore, Customer shall not, and shall ensure that Authorized Users do not: (i) copy, in whole or in part, or make any modifications to the Services; (ii) use the Services or the Services Content (as defined herein) in a manner that violates any applicable laws, these Terms, or the ZEST AI Policies; (iii) use the Services or the Services Content in a manner that infringes, misappropriates, or otherwise violates any third party’s privacy or intellectual property; (iv) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any patent, trademark, copyright or other Intellectual Property Rights (as defined herein) notices, symbols or serial numbers on or relating to any copy of the Services; (v) upload, submit, include in an Input, or otherwise send to ZEST AI through or in connection with the Services any Personal Information (as defined herein); provided Customer may upload, submit, include in an Input, or otherwise send to ZEST AI through or in connection with the Services anonymized and de-identified Personal Information; (vi) allow any third parties to access or use the Services without ZEST AI’s prior written consent; (vii) directly or indirectly reverse assemble, reverse compile, decompile, disassemble, decode, translate, engage in model extraction or stealing attacks, attempt to gain access to, or otherwise attempt to discover or derive the source code or underlying components of the Services, algorithms, or systems of the Services, in whole or in part (except to the extent these restrictions are contrary to applicable law); (viii) use Output to develop any artificial intelligence models that compete with ZEST AI’s products and services; (ix) use any method to extract data from the Services other than generating the Outputs; (x) perform any activity that is harmful to or interferes with the Services or the Interface, or the network, systems, or facilities used to provide the Services and the Interface, or is otherwise intended to circumvent the security measures of the Services, ZEST AI, or any third party; (xi) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Services or any portion thereof available to any third party (including any of affiliate(s) of Customer), including on or in connection with the internet or any time-sharing, service bureau, software as a service, hosted service, cloud-based service or other technology or service; or (xii) use the Services for any purpose other than the Permitted Purposes. Without limiting the foregoing, Customer shall not, and shall ensure Authorized Users do not, use the Services for purposes of: (a) developing, using or providing a competing software product or service (or contract with a third-party to do so); or (b) any other purpose that is to ZEST AI’s detriment or commercial disadvantage and the detriment or disadvantage is reasonably foreseeable. Notwithstanding the foregoing, Customer may develop its own large language model(s) so long as it is developed without reference or use of ZEST AI’s Confidential Information (as defined herein). If Customer becomes aware of any breach of this Section 1(D), it will immediately notify ZEST AI and remedy the situation, including, if necessary, by limiting, suspending, or terminating any relevant user’s access to the Services. If Customer fails to remedy the breach within 15 days, ZEST AI may temporarily suspend its access to the Services until the breach is fully resolved. Without limiting the foregoing, ZEST AI reserves the right to suspend Customer’s access to the Services if reasonably necessary to prevent harm to any third party, ZEST AI, or the Services. Customer is responsible for the confidentiality and use of all credentials issued to Customer to access the Services, and for all use of the Services facilitated by such credentials.
  5. Services Content. Customer may provide content, data, or information to the Services (“Input”), and receive output from the Services based on the Input (“Output”). Input and Output are referred to together herein as “Services Content”.
    1. Input. 
      1. Customer is solely responsible for ensuring that all Inputs comply with these Terms and the ZEST AI Policies, including but not limited to ensuring that no Personal Information is included in any Input. Customer represents and warrants that it has all rights, licenses, and permissions required to provide Input to the Services. As between Customer and ZEST AI, and to the extent permitted by applicable law, Customer owns all rights in the Input.
      2. ZEST AI will store all Input in accordance with the ZEST AI Policies and process such Input to provide the Services to Customer. Customer hereby grants to ZEST AI and its contractors and service providers a non-exclusive, perpetual, royalty-free, fully paid-up license to use the Input to develop, train, and improve the Services and/or related products or services consistent with the ZEST AI Policies, including but not limited to their functionalities, as well as to host, use, process, display, transmit and otherwise access the Input to provide the Services to Customer and to otherwise perform ZEST AI’s obligations or rights under these Terms. 
    2. Output. 
      1. Customer is solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for its use, including by utilizing human review as appropriate. Customer understands and agrees that the Services may provide incomplete, incorrect, and/or offensive Outputs that do not represent the views of ZEST AI. If Output references any third party products or services, it does not mean the third party endorses or is affiliated with ZEST AI. Customer shall not use the Output in any manner that violates applicable laws or is contrary to the restrictions set forth herein. 
      2. ZEST AI will store, maintain, and process all Output in accordance with the ZEST AI Policies. As between Customer and ZEST AI, and to the extent permitted by applicable law, Customer owns all Output, excluding any Intellectual Property Rights of ZEST AI incorporated therein. Customer hereby grants to ZEST AI and its contractors and service providers a non-exclusive, perpetual, royalty-free, fully paid-up license to use Output to develop, train, and/or improve the Services and/or related products or services consistent with the ZEST AI Policies, including but not limited to their functionalities, as well as to host, use, process, display, transmit and otherwise access the Output to provide the Services to Customer and to otherwise perform ZEST AI’s obligations or rights under these Terms. 
      3. Customer acknowledges that due to the nature of the Services and artificial intelligence generally Output may not be unique, and other users may receive similar content from the Services.
  6. Modification. ZEST AI retains the right to update, replace, substitute, or otherwise modify the Services or any part of the Services from time to time without prior notice to Customer provided that such modifications comply with the ZEST AI Policies.
  7. Beta Features. From time to time, ZEST AI may make new or updated features available as part of the Services (“Beta Features”). Beta Features are provided “as is” and are intended for evaluation purposes and not for production use. Beta Features are not considered part of the Services and are excluded from any indemnification obligations ZEST AI may have to Customer. ZEST AI makes no representations or warranties for Beta Features, including any warranty that Beta Features will be generally available, uninterrupted, or error-free, or that any Services Content derived from Beta Features will be secure or not lost or damaged. Except to the extent prohibited by law, ZEST AI expressly disclaims all warranties for Beta Features, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade. ZEST AI may discontinue Beta Features at any time in its sole discretion.
  8. Paid Subscriptions; Cancellation; Changes.
    1. Payment; Taxes. Customer agrees to provide complete and accurate billing information on the Order Form so that Customer may be invoiced for its subscription(s) to use the Services. Per the Order Form, ZEST AI will invoice Customer on each agreed-upon periodic renewal until cancelled. Customer is responsible for all applicable taxes, and we will charge tax when required. We may suspend the Customer Account and Customer’s access to the Services if any invoice is not timely paid.
    2. Cancellation. Except as may be set forth herein, in the Order Form or where required by law, Customer’s subscription(s) to use the Services is non-cancelable and payments are non-refundable. These Terms do not override any mandatory local laws regarding Customer’s cancellation rights.
    3. Changes. Unless otherwise specified in the Order Form, we may change our prices from time to time. If we increase our subscription prices, we will give Customer at least 30 days’ notice and any price increase will take effect on the next renewal so that Customer can cancel if it does not agree to the price increase.
  9. Third-Party Software. Customer acknowledges and agrees that the Services may contain or incorporate certain third-party software, including open-source software, large language models, and forms of artificial intelligence and/or machine learning (collectively, “Third-Party Software”), and that such Third-Party Software is subject to its own terms. ZEST AI is not responsible for the respective terms of any Third-Party Software, nor does ZEST AI make any representations or warranties with respect to any such Third-Party Software.
  10. Compliance. ZEST AI shall ensure that all artificial intelligence, machine learning, analytics, and other aspects of the processes used to develop, modify, or improve the Services comply with the ZEST AI Policies. Customer acknowledges that the Services are not intended to be a substitute for any of its generally implemented lending practices and policies, and that Customer retains an independent obligation to review the Services, including the Services Content, and ensure its use of the Services meets all state, federal and other legal and regulatory obligations applicable to Customer.

2.     Security

Customer and ZEST AI agree to use one another’s Confidential Information (as defined herein) in accordance with all applicable law and pursuant to the confidentiality obligations set forth herein. ZEST AI will use Customer’s Confidential Information pursuant to the ZEST AI Policies, which are designed to (i) protect the Services and Input against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through regular risk assessments and testing. Customer agrees to adopt operating procedures and physical security measures to properly safeguard any credentials or other security devices used to access the Services from unauthorized use and any Output generated by the Services from disclosure or release to unauthorized third parties.

3.     Termination and Suspension; Discontinuation of Services

  1. Termination and Suspension. Customer is free to stop using the Services at any time. We reserve the right to suspend or terminate Customer’s access to the Services or cancel Customer’s subscription(s) if we determine: (i) Customer breached these Terms or the ZEST AI Policies, (ii) we must do so to comply with any applicable law, and/or (iii) Customer’s use of the Services could cause risk or harm to ZEST AI, other users of the Services, or anyone else. Any such suspension or termination of Customer’s access to the Services or any such cancellation of Customer’s subscription(s) will not entitle Customer to a refund for any prepaid, unused Services.
  2. Discontinuation of Services. ZEST AI may decide to discontinue the Services. If we do, we will give Customer advance notice and a refund for any prepaid, unused Services.

4.     Intellectual Property

  1. ZEST AI Intellectual Property. Customer acknowledges that as between Customer and ZEST AI, ZEST AI owns all right, title, and interest in and to the Services, and all Intellectual Property Rights embedded therein, including any Intellectual Property Rights of Zest AI incorporated in the Outputs. The Services are protected by intellectual property laws of the United States and other applicable countries. Customer may not modify, copy, reproduce, distribute, create derivative works or adaptations of, publicly display, or in any way exploit the Services or any Outputs that incorporate Intellectual Property Rights of Zest AI in whole or in part except as expressly authorized by ZEST AI. Customer will not remove, alter, or conceal any proprietary rights (e.g., copyright) notices incorporated in or accompanying any portion of the Services or related products or services.
  2. Feedback. Customer hereby assigns to ZEST AI all right, title, and interest in and to any feedback, ideas, or suggested improvements provided by Customer to ZEST AI regarding the Services, including in connection with ZEST AI’s development, manufacturing, and marketing of the Services or any other products or services.

5.     Confidentiality

  1. Definition. Customer and ZEST AI acknowledge and agree that any information, including but not limited to any business, technical or financial information, materials, or other subject matter, whenever disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with the Services and these Terms will constitute proprietary or confidential information (“Confidential Information”) of the Disclosing Party. Information will not be considered Confidential Information only to the extent that the Receiving Party can demonstrate that such information: (i) was already known to the Receiving Party prior to its disclosure under these Terms, free of any confidentiality obligation at the time it is obtained; (ii) is or becomes publicly known through no wrongful act or omission of the Receiving Party; (iii) is lawfully acquired by the Receiving Party from an independent source having no obligation to maintain the confidentiality of such information and without restriction and without breach of these Terms; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and without breach of these Terms. Notwithstanding the foregoing exceptions, ZEST AI’s Confidential Information includes, without limitation, the pricing, features, and functions of its products and services, including the Services.
  2. Obligations. The Receiving Party agrees: (i) to hold the Confidential Information of the Disclosing Party in strict confidence, using the same degree of care and protection that it exercises with respect to its own Confidential Information of a similar nature, but in no event less than a commercially reasonable degree of care; (ii) not to use (directly or indirectly) for its own benefit or the benefit of others, disclose or make available to any person, reproduce or transmit in any manner the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent except as expressly permitted under these Terms; and (iii) not to directly or indirectly disclose or allow any third-party to have access to any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent except as expressly permitted under these Terms. Notwithstanding the foregoing, Confidential Information may be disclosed by the Receiving Party to its affiliates and their respective employees, officers, directors, agents, attorneys, accountants, vendors and subcontractors who are not competitors of the Disclosing Party and who need to know such information for purposes contemplated by these Terms, including, in the case of Zest AI, to help perform the Services, or to comply with applicable legal, regulatory or accounting requirements, provided that (a) each such person to whom such Confidential Information shall be disclosed shall be subject to duties of confidentiality with respect thereto substantially similar to those imposed by these Terms and (b) the Receiving Party shall be liable for their breach of this Section 5. Each party agrees to use, and to cause its affiliates and other persons to which it discloses such Confidential Information to use such Confidential Information only for the purpose contemplated by these Terms. Furthermore, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent required by law or by governmental or judicial order, in which case the Receiving Party shall give the Disclosing Party prompt written notice and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and to enable the Disclosing Party to seek a protective order or other appropriate remedy at the Disclosing Party’s sole cost. Customer and ZEST AI acknowledge and agree that the unauthorized use or disclosure of the Confidential Information of the other party would cause irreparable harm and significant injury for which the other party would not have an adequate remedy at law. Therefore, Customer and ZEST AI agree that in the event of any breach or threatened breach of this Section 5, without limiting any other rights and remedies which may otherwise be available to the injured party, an injunction may be sought against the party that has breached or threatened to breach this Section 5 without the necessity of proving actual damages or positing bond or other security.

6.     Privacy

Customer shall not use the Services to create, receive, maintain, transmit or otherwise process any Personal Information. ZEST AI disclaims all responsibility related to any Personal Information received from Customer via the Interface or otherwise in connection with the Services.

7.     Disclaimer

TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ZEST AI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND THE SERVICES ARE PROVIDED “AS-IS,” EXCLUSIVE OF ANY WARRANTY, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZEST AI DISCLAIMS ALL WARRANTIES AND LIABILITIES, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, REGARDING THE ACCURACY, COMPLETENESS, OR UTILITY OF THE SERVICES, INCLUDING THE OUTPUT, OR ANY PART THEREOF, OR OTHER INFORMATION CONTAINED IN OR DERIVED OR OBTAINED FROM THE SERVICES. ZEST AI DOES NOT WARRANT THAT THE INTERFACE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE COMPLETELY SECURE AGAINST UNAUTHORIZED INTRUSION. CUSTOMER HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER ZEST AI NOR ITS AFFILIATES IS A PARTY TO ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD PARTY OR ASSUMES ANY LIABILITY WITH RESPECT TO ANY SUCH TRANSACTION. AS BETWEEN ZEST AI AND CUSTOMER, CUSTOMER IS SOLELY RESPONSIBLE FOR ALL USE OF THE SERVICES AND THE OUTPUTS, OR OTHER INFORMATION CONTAINED IN OR DERIVED OR OBTAINED FROM THE SERVICES AND FOR COMPLIANCE WITH APPLICABLE LAW.

8. Limitation of Liability

IN NO EVENT WILL CUSTOMER OR ZEST AI BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST REVENUES OR PROFITS, GOODWILL, USE, OR DATA OR OTHER LOSSES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.’

EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES WITH RESPECT TO ALL EVENTS, ACTS, OR OMISSIONS ARISING UNDER OR IN CONNECTION WITH THESE TERMS WILL NOT EXCEED THE GREATER OF THE AMOUNT CUSTOMER PAID OR PAYABLE FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE OR ONE HUNDRED DOLLARS ($100). THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITIES ARISING OUT OF (A) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (“INDEMNIFICATION”), (B) A PARTY’S BREACH OF SECTION 5 (“CONFIDENTIALITY”), OR (C) CUSTOMER’S USE OF THE SERVICES BEYOND THE SCOPE OF THE PERMITTED PURPOSES.

Some countries and states do not allow the disclaimer of certain warranties or the limitation of certain damages, so some or all of the terms above may not apply to Customer, and Customer may have additional rights. In that case, these Terms only limit our responsibilities to the maximum extent permissible in Customer’s country of residence.

ZEST AI’S AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS SECTION.

 

9.     Indemnification

  1. ZEST AI’s Obligations.ZEST AI will indemnify and defend Customer for any damages finally awarded by a court of competent jurisdiction and any settlement amounts payable to a third party arising out of a claim by a third party against Customer alleging that the Services infringe any United States patent or trade secret right of a third party (“IP Claim”). This excludes claims to the extent arising from: (i) combination of any Services with products, services, or software not provided by us or on our behalf; (ii) fine-tuning, customization, or modification of the Services by any party other than us; (iii) the Input or any training data Customer provides to us; (iv) Customer’s failure, or the failure of its officers, employees, representatives or agents, to comply with these Terms or laws, regulations, or industry standards applicable to Customer; or (v) the gross negligence or willful misconduct of Customer or its officers, employees, representatives or agents. ZEST AI’S indemnification obligations under this Section 9(A) shall be subject to the procedure set forth in Section 9(C) below. In the event of an IP Claim, ZEST AI may, in its sole discretion, (a) secure Customer’s right to continue using the Services, (b) replace the infringing portion of the Services, or (c) terminate Customer’s use of the Services and provide Customer with a refund for any prepaid, unused Services.
  2. Customer’s Obligations. Customer agrees to indemnify, defend, and hold ZEST AI and its affiliates, suppliers, licensors and distributors harmless against any and all claims, liabilities, damages, and costs or expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) payable to a third party arising out of a claim by a third party related to: (i) Customer’s use of the Services in violation of these Terms (including violation of the ZEST AI Policies); (ii) Input; (iii) any contract or other transaction between Customer and any third party; (iv) failure of Customer or its officers, employees, representatives or agents to comply with any applicable statutes, ordinances and other regulations and requirements of any governmental authority in connection with the use of the Services or the Output; (v) the gross negligence or willful misconduct of Customer or its officers, employees, representatives or agents; or (vii) any unauthorized use of Customer’s or an Authorized User’s login information; and Customer agrees to pay any Losses arising therefrom, in each instance subject to the procedure set forth in Section 9(C). Customer agrees that it is responsible for any breach or violation of these Terms or applicable law by any of its officers, employees, representatives or agents as though Customer had engaged in such breach or violation itself.
  3. Procedure. The indemnified party hereunder will: (i) provide the indemnifying party with prompt written notice upon becoming aware of any indemnifiable claim; (ii) reasonably cooperate with the indemnifying party in the defense of any such claim; and (iii) provide the indemnifying party with sole and exclusive control of the defense and settlement of any such claim. The indemnifying party will have the exclusive right to select its own counsel and make settlements of the claim at its own discretion, provided that the indemnifying party may not enter into any settlement or compromise of such claim, without prior written consent of the indemnified party, that (a) contains a stipulation to, or admission or acknowledgment of, any liability or wrongdoing on the part of the indemnified party; (b) involves the incurrence of any costs or expenses on the part of the indemnified party; or (c) imposes any obligation upon the indemnified party, other than with prior written consent of the indemnified party.

10.     Dispute Resolution; Litigation

  1. Mandatory Arbitration. Customer and ZEST AI agree to resolve any claims arising out of or relating to these Terms or the Services, regardless of when the claim arose, even if it was before these Terms existed (a “Dispute”), through final and binding arbitration, except as otherwise provided herein. The arbitration shall be conducted in accordance with the rules of National Arbitration and Mediation (“NAM”) in effect at the time of the Dispute. The arbitration shall take place in Los Angeles, California, and the governing law shall be the laws of California, United States of America, without regard to its conflict of law principles. The arbitration shall be conducted one arbitrator appointed in accordance with the applicable arbitration rules. All arbitration proceedings, including but not limited to documents, awards, and discussions, shall be kept confidential by the parties and the arbitrator. Each party shall bear its own costs and expenses related to the arbitration, including attorneys’ fees, except as may be otherwise awarded by the arbitrator. The decision of the arbitrator shall be final, binding, and enforceable in any court of competent jurisdiction.
  2. Informal Dispute Resolution.Customer and ZEST AI both acknowledge and agree that prior to filing any claim against each other, we will try to resolve the Dispute informally. Each party agrees to do so by sending the other party notice to the email address set forth on the Order Form. If we are unable to resolve the Dispute within 60 days, either of us has the right to initiate arbitration. We also both agree to attend an individual settlement conference if either party requests one during this time. Any statute of limitations will be tolled during this informal resolution process.
  3. Exceptions. This Section 10 does not require informal dispute resolution or arbitration of the following claims: (i) individual claims brought in small claims court; and (ii) injunctive or other equitable relief to stop unauthorized use or abuse of the Services, intellectual property infringement or misappropriation, breach of confidentiality, or other claims requiring urgent relief.
  4. Governing Law.These Terms will be governed by, and interpreted under, the laws of the State of California, United States of America. The UN Convention on Contracts for the International Sale of Goods (CISG) will not apply.
  5. Jury Trial Waiver. CUSTOMER AND ZEST AI EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICES IS LITIGATED OR HEARD IN ANY COURT.
  6. Class Waiver. CUSTOMER AND ZEST AI AGREE THAT DISPUTES MUST BE BROUGHT ON AN INDIVIDUAL BASIS ONLY, AND MAY NOT BE BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, AND REPRESENTATIVE ACTIONS ARE PROHIBITED. ONLY INDIVIDUAL RELIEF IS AVAILABLE. CUSTOMER AND ZEST AI AGREE TO SEVER AND LITIGATE IN COURT ANY REQUEST FOR PUBLIC INJUNCTIVE RELIEF AFTER COMPLETING ARBITRATION FOR THE UNDERLYING CLAIM AND ALL OTHER CLAIMS. THIS DOES NOT PREVENT EITHER CUSTOMER OR ZEST AI FROM PARTICIPATING IN A CLASS-WIDE SETTLEMENT.
  7. Batch Arbitration. If 25 or more claimants represented by the same or similar counsel file demands for arbitration raising substantially similar Disputes within 90 days of each other, then Customer and ZEST AI agree that National Arbitration and Mediation (“NAM”) will administer them in batches of up to 50 claimants each (“Batch”), unless there are less than 50 claimants in total or after batching, which will comprise a single Batch. NAM will administer each Batch as a single consolidated arbitration with one arbitrator, one set of arbitration fees, and one hearing held by videoconference or in a location decided by the arbitrator for each Batch. If any part of this section is found to be invalid or unenforceable as to a particular claimant or Batch, it will be severed and arbitrated in individual proceedings.  

11.     Miscellaneous

  1. Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected or impaired and any provision deemed unenforceable will automatically be revised with the least changes necessary to effect, to the fullest extent permitted by applicable law, the intent of the parties as set forth therein.
  2. Assignment.Customer may not assign or transfer any rights or obligations under these Terms and any attempt to do so will be void. ZEST AI may assign its rights or obligations under these Terms to any affiliate, subsidiary, or successor in interest of any business associated with the Services.
  3. Amendment. ZEST AI may, at any time and within its sole discretion, modify these Terms or the ZEST AI Policies which these Terms reference and are incorporated herein. We will give Customer at least 30 days advance notice of changes to these Terms that materially adversely impact Customer either via email or an in-product notification. All other changes will be effective as soon as we post them to our website. If Customer does not agree to the changes, Customer must stop using the Services.
  4. Force Majeure. Except for Customer’s payment obligations, neither party will be responsible to the other for any failure, in whole or in part, to perform any obligations under these Terms, to the extent that performance is prevented, hindered, or delayed by fire, flood, earthquake, elements of nature, or acts of God, acts of war, acts or attempted acts of terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, or other labor disputes, power, network, or Internet outages, epidemics, pandemics or outbreak of communicable disease, quarantines, national or regional emergencies or any other cause beyond the reasonable control of such party. In addition, ZEST AI’s failure to perform its responsibilities under these Terms or delay in performance will be excused if the non-performance or delay is caused by Customer or any of its officers, employees, representatives or agents, or any other third party.
  5. Independent Contractors. ZEST AI is acting solely as an independent contractor to Customer, and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Customer and ZEST AI.
  6. No Third-Party Beneficiaries. Except as explicitly set forth herein, these Terms are for the sole benefit of Customer and ZEST AI and our respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
  7. Notices. All notices required to be given pursuant to these Terms shall be given in writing. We may provide Customer notice using the registration information or the email address associated with its account. Service will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. We accept service of process at this address: ZEST AI, 3900 West Alameda Avenue, Suite 1600, Burbank, CA 91505, Attn: Legal Department.
  8. Entire Agreement. These Terms, and the Order Form, contain the entire agreement between Customer and ZEST AI with respect to the Services and supersedes any prior or contemporaneous agreements between Customer and ZEST AI.
  9. Compliance with Laws. Each party shall comply with all applicable laws and regulations in its performance of these Terms.
  10. Trade Controls. Customer shall comply with all applicable trade laws, including sanctions and export control laws. The Services may not be used in or for the benefit of, or exported or re-exported to (a) any U.S. embargoed country or territory or (b) any individual or entity with whom dealings are prohibited or restricted under applicable trade laws. The Services may not be used for any end use prohibited by applicable trade laws, and the Input may not include material or information that requires a government license for release or export.
  11. Authority. Customer and ZEST AI represent and warrant, each to the other, that as of the date of its acceptance of these Terms: (i) each is duly organized, validly existing and in good standing under the laws of the state of its incorporation, organization or charter, with full authority and power to execute, deliver and perform all of the obligations under these Terms; and (ii) each has the full right and corporate or business power and authority and has taken all necessary corporate or business action that is necessary, required or appropriate to authorize and enable each to enter into and perform all of the obligations under these Terms, and the persons executing these Terms have full and complete authority to bind the parties hereto under the terms, provisions and obligations set forth in these Terms.

12.     Definitions

“Authorized Users” means the specific individuals whom Customer designates to use the Services. Authorized Users may be Customer’s employees, representatives, contractors, or other third parties acting on Customer’s behalf.

“Intellectual Property Rights” means patents, rights to inventions, copyrights, software, trademarks, trade names, trade dress, service marks, logos, trade secrets, compilations, diagrams, layouts, data, mask works, know-how, database rights, designs, methods, processes, formulas, whether registered or unregistered, together with all improvements, modifications, enhancements, and derivative works to all of the foregoing, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Interface” means the specific user interface through which Customer can access the Services by providing the Inputs and receiving the Outputs.

“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly with a particular individual or household, in whatever format, including information contained in communications, documents, databases, records or materials of any kind whether in individual or aggregate form, including non-public personal information as defined by Section 503 of the Gramm-Leach-Bliley Act of any individual consumer, Protected Health Information as defined under the HIPAA Privacy Rule, personal information as defined California Consumer Privacy Act of 2018, and any regulations promulgated thereunder, each as amended from time to time, or personal data as defined by General Data Protection Regulation (EU) 2016/679 and any member state implementing regulations, each as amended from time to time.