Version: December 1, 2023
This AI Schedule (“AI Schedule”) forms part of the Cloud Services Agreement (“Agreement”) between Varicent and the Customer which incorporates by reference this AI Schedule. This AI Schedule applies to the provision of Cloud Services by Varicent to the Customer that use AI enabled features.
1.1. Capitalized terms shall have the meanings set forth in this Schedule or elsewhere in the Agreement.
(a) “AI” means artificial intelligence.
(b) “AI Provider” means OpenAI LLC.
(c) “AI Provider Policies” means AI provider’s Usage Policies, and any future guidelines or policies AI Provider may provide in writing.
(d) “AI Provider Subprocessors” means the entities identified at the following link: https://platform.openai.com/subprocessors.
(e) “Enhanced AI Features” means any Cloud Services which utilize data models that are trained by machine learning and AI tools from the AI Provider.
(f) “Input Content” means any prompts input by Customer to the Enhanced AI Features as well as any Customer Data reasonably required to supplement the prompt with additional context.
(g) “Notice Period” has the meaning given in Section 2.3 of this Schedule.
(h) “Output Content” means any data or content output to Customer by the Enhanced AI Features.
(i) “Personal Data” has the meaning outlined in the Agreement or the meaning associated with its equivalent term in the Agreement such as but not limited to “Personal Information”.
(j) “Protected Health Information” has the meaning defined under the Health Insurance Portability and Accountability Act (1996) Privacy Rule (45 C.F.R. Section 160.103).
(k) “Statistical Data” means any data related to the provision, operation or use of the Cloud Services, including measurement and usage statistics, configurations, survey responses, and performance results.
2. USE OF ENHANCED AI FEATURES
2.1. Changes and Availability. Without liability and in its discretion, Varicent may: (a) modify the Enhanced AI Features from time to time; and (b) suspend or discontinue the availability of Enhanced AI Features upon providing written notice to the Customer, which may be made by way of e-mail or a notification within the applicable Cloud Services product. Any termination or suspension of Enhanced AI Features does not entitle the Customer to any reduction, refund or credit of Fees.
2.2. Use of Enhanced AI Features. Customer may provide Input Content to be processed by Enhanced AI Features and receive Output Content. Customer acknowledges that Output Content may not be unique, and Enhanced AI Features may generate the same or similar Output Content for Varicent’s other customers. Customer will not use Enhanced AI Features: (a) to develop data sets, foundation models, or other large scale models that may compete with Varicent or the AI Provider; (b) to mislead any person or imply that Output Content generated using Enhanced AI Features is unique or solely human generated; or (c) in any manner which violates the Agreement.
2.3. Data Processing. Varicent uses the AI Provider to host and provide the Enhanced AI Features and Customer’s agreement to abide by third-party terms and conditions is required to access the Enhanced AI Features. Customer therefore agrees that:
(a) Input Content will be processed by the AI Provider and AI Provider Subprocessors from their associated countries;
(b) Enhanced AI Features are only subject to SOC2 certification and the security measures included in its Data Processing Addendum;
(c) Customer will abide by the AI Provider Policies and only use the Enhanced AI Features from AI Provider-supported locations;
(d) The Enhanced AI Features do not require Personal Data to function. If Input Data includes Personal Data, Customer represents that it is processing such information in accordance with applicable Law. Customer agrees not to use the Enhanced AI Features to transmit or otherwise process Protected Health Information;
(e) Varicent shall notify Customer in advance of any addition or replacement of AI Provider or AI Provider Subprocessors. Within five days after Varicent’s notification of an intended change (“Notice Period”), Customer can object to the addition of such subprocessor on the basis that such addition would cause Customer to violate applicable Law. Customer’s objection shall be in writing and include Customer's specific reasons for its objection and options to mitigate, if any. If Customer does not object within the Notice Period, the respective subprocessor may be commissioned to process Input Data. If Customer objects within the Notice Period and Varicent is unable to accommodate Customer’s concern, Customer shall immediately cease using the Enhanced AI Features. Customer’s further use of the Enhanced AI Features shall signify Customer’s consent to the processing of Input Data by the then-current subprocessors.
2.4. Intellectual Property. All right, title, and interest in the Output Content (other than Statistical Data) (including all intellectual property) is owned by Customer. All right, title, and interest in the Enhanced AI Features and Statistical Data (including all intellectual property) is owned by Varicent. Varicent reserves all rights not expressly grated to Customer in this AI Schedule. The Customer grants to Varicent a non-exclusive, worldwide, fully paid up and royalty-free license to use and reproduce the Output Content for the for the purpose of providing, enhancing, developing, diagnosing and correcting the Services.
2.5. Changes. Customer acknowledges and agrees that Varicent may, at Varicent’s discretion and without notice to the Customer, modify this AI Schedule from time to time; provided, however any such modifications shall (a) replace all prior versions (as applicable); and (b) not materially reduce the service levels, functionality or security of the Services.
2.6. Paramountcy. Unless otherwise expressly stated in the Agreement, in the event of any conflict or inconsistency between the Agreement and this AI Schedule, the terms of the AI Schedule shall prevail.
3. RISKS AND LIMITATIONS
3.1. General. AI and machine learning technologies have known and unknown risks and limitations. Customer acknowledges and agrees that it is solely responsible for developing its own internal policies and controls regarding the use of these technologies. Customer acknowledges and agrees:
(a) Varicent is not responsible for any inaccuracies or errors in the Output Content;
(b) Output Content may not be unique and the Enhanced AI Features may generate the same or similar output for Varicent, other users or third parties;
(c) Varicent is not responsible for any biases or limitations of the underlying algorithms or data in Enhanced AI Features;
(d) Customer is solely responsible for responding to any third-party claims it receives regarding Customer's use of the Enhanced AI Features;
(e) Enhanced AI Features are an optional feature of the Cloud Service and Customer is free to stop using the Enhanced AI Features at any time;
3.2. Disclaimer. The Enhanced AI Features are provided on an “as is” basis. Varicent does not make any warranty regarding the Output Content or the accuracy or suitability of the Output Content. The Customer acknowledges and agrees that any Output Content is to be relied upon by the Customer at the Customer’s sole risk. Varicent disclaims all liability arising from the Customer’s use and reliance upon any Output Content.
3.3. Content. The Enhanced AI Features rely on models and service arrangements provided by third parties. Those third parties may temporarily store Input Content and Output Content solely for providing Customer the Enhanced AI Features, complying with applicable Law, and enforcing AI Provider Policies, which may include debugging and monitoring for and preventing abusive or harmful uses or outputs of the Enhanced AI Features. Authorised personnel at those third parties may review Input Content and Output Content that triggered their automated systems to investigate and verify potential abuse.
3.4. Service Levels Not Applicable. Customer acknowledges and agrees that any Downtime of the Enhanced AI Features caused by any act or omission of the AI Provider or Customer shall be excluded from the calculation of Downtime.