This Software Subscription Agreement (this “Agreement”), effective as of [date] (the “Effective Date”), is by and between Wind Stream, Inc. (“Wind Stream”) and [Customer entity name] (“Customer”). This Agreement includes and incorporates the applicable Order Form(s), which reference this Agreement. Wind Stream and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
RECITALS
A. Wind Stream operates the Wind Stream Platform and provides access to its customers; and
B. Customer desires to access and use the Wind Stream Platform, and Wind Stream is willing to provide such access, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
DEFINITIONS.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Wind Stream Platform, including, without limitation, any usage data or trends with respect to the Wind Stream Platform.
“Authorized User” means an employee or contractor whom Customer has authorized to use the Wind Stream Platform and to whom Customer has assigned a Seat.
“Client Software” means any Wind Stream-provided software that Customer or its Authorized Users may download, install, and execute on user devices to interact with the Wind Stream Platform, including without limitation the wind command-line interface.
“Compute Hours” means hours of active agent execution time, measured from the initiation to the completion or termination of an agent task on the Wind Stream Platform, as tracked by Wind Stream’s standard measurement systems.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Wind Stream Platform (including via Client Software) or to Wind Stream in connection with Customer’s use of the Wind Stream Platform, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Wind Stream and made available through or in connection with the Wind Stream Platform.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Wind Stream to Customer (including any revised versions thereof) relating to the Wind Stream Platform, which may be updated from time to time upon notice to Customer.
“DPA” means the Wind Stream Data Processing Addendum published at windstream.ai/legal, as updated from time to time.
“Dynamo” means the base unit of Wind Stream Platform capacity, comprising the number of Seats, Storage, Compute Hours, and Tokens set forth in the applicable Order Form. Dynamos are sold in integer multiples (each such multiple, an “Nx Dynamo,” where N is the applicable multiplier), with all grants [of Seats, Storage, Compute Hours, and Tokens] scaling linearly with the multiplier.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Licensed Volume” means the aggregate Seats, Storage, Compute Hours, and Tokens granted to Customer by Customer’s Dynamo configuration as set forth in the applicable Order Form.
“Order Form” means a mutually executed order form or amended issued by Wind Stream and accepted by Customer, in each case which references this Agreement and sets forth the applicable Dynamo configuration, pricing, and subscription term.
“Personal Data” has the meaning set forth in the DPA.
“Seat” means a named license entitlement assigned to one Authorized User, granting that individual the right to access the Wind Stream Platform.
“Storage” means the aggregate persistent data storage capacity, measured in gigabytes, allocated to Customer’s Wind Stream Platform environment under Customer’s Licensed Volume.
“Sub-processor List” means the list of third-party sub-processors that process Customer Materials, published at windstream.ai/subprocessors, as updated from time to time in accordance with the DPA.
“Tokens” means the monthly allotment of language model processing units allocated to Customer under Customer’s Licensed Volume, measured as the combined count of input and output tokens (in millions) processed by the Wind Stream Platform on Customer’s behalf during a calendar month.
“Wind Stream Platform” means Wind Stream’s proprietary agentic AI-based platform, and all associated technology (including the Client Software), which is made available by Wind Stream to Customer and is intended to integrate with Customer’s user applications and AI tools and enable Customer to capture, process, analyze, generate, share, act upon, and collaborate on project management, insights, documents, tasks, workflows, and other outputs, and facilitate integrations and actions across third-party tools.
“Wind Stream IP” means the Wind Stream Platform (including all Client Software), the underlying software provided in conjunction with the Wind Stream Platform, algorithms, AI models, AI systems, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Wind Stream Platform, Documentation, and Aggregate Data, all improvements, modifications or enhancements to or derivative works of, the foregoing (regardless of inventorship or authorship) and all Intellectual Property Rights in and to any of the foregoing.
SUBSCRIPTION SERVICES; ACCESS AND USE.
Wind Stream Platform. Subject to the terms and conditions of this Agreement, Wind Stream hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section [12(f) right to use the Wind Stream Platform during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
Use Restrictions. Customer will not at any time and will not permit any third party (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Wind Stream Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Wind Stream Platform or Documentation, in whole or in part; (iii) decipher, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Wind Stream Platform or any components, models, algorithms or systems used to provide the Wind Stream Platform, in whole or in part, or engage in any of the adversarial attacks set forth in the NIST AI 100-2 E2025 publication available at https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-2e2025.pdf; (iv) frame, mirror, repackage sell, resell, rent or lease use of the Wind Stream Platform to any other third party or otherwise allow any third party to use the Wind Stream Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Wind Stream Platform, Output or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Wind Stream Platform or any data or content contained therein or transmitted thereby; (vii) access or search the Wind Stream Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Wind Stream Platform features provided by Wind Stream for use expressly for such purposes; (viii) remove or alter any copyright, trademark, or other proprietary notices in the Client Software; (ix) use the Client Software independently of the hosted components of the Wind Stream Platform; (x) use the Wind Stream Platform, Documentation or any other Wind Stream Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Wind Stream Platform; (xi) use the Wind Stream Platform or any Output in a manner that violates the usage policies of Third-Party Services (as defined below), as applicable; or (xii) utilize the Wind Stream Platform (including any AI models or derivatives thereof), Documentation or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping” or “model distillation”).
Prohibited Uses. Without limiting the restrictions set forth in Section 2(b) above, Customer will not, and will not permit any Authorized User or third party to, use the Wind Stream Platform or any Output: (i) to generate, distribute, or facilitate content that is illegal under applicable law, including without limitation child sexual abuse material, content that promotes or incites terrorism or violent extremism, or content that facilitates human trafficking; (ii) to generate non-consensual sexual imagery or sexual imagery of minors, or to generate deepfakes or synthetic media of identifiable individuals for deceptive, harassing, or non-consensual purposes; (iii) to impersonate any person or organization in a manner intended to deceive, or to represent Output as human-authored in any context where such representation would mislead a reasonable recipient; (iv) to harass, threaten, intimidate, or stalk any individual, or to generate content directed at a specific individual with the intent to harm them; (v) to send unsolicited communications in violation of the CAN-SPAM Act, the TCPA, or any similar anti-spam or telemarketing law, or to distribute malware, phishing content, or other malicious software; or (vi) to re-identify individuals from de-identified data or to attempt to derive personally identifying information about individuals from Aggregate Data or from any output generated by the Wind Stream Platform.
Authorized Users. Customer will not allow any third party other than Authorized Users to use the Wind Stream Platform. Customer may permit Authorized Users to use the Wind Stream Platform, provided that (i) the number of Authorized Users does not exceed the number of Seats in Customer’s Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their use of the Wind Stream Platform. Each applicable Order Form will outline the number of Seats allocated to Authorized Users as granted by the Dynamo configuration set forth on such Order Form. A Seat may only be used by the specific Authorized User to whom it is assigned. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Wind Stream Platform in accordance with customary security protocols, and will promptly notify Wind Stream if Customer knows or reasonably suspects that any user name, password, or Client Software authentication credential has been compromised. Each Seat may only be accessed and used by the specific Authorized User for whom such account is assigned and is non-transferable except upon written request to Wind Stream. Authentication of the Client Software to an Authorized User’s Wind Stream account constitutes acceptance of this Agreement in the context of Client Software usage; all data transmitted through the Client Software is Customer Materials governed by this Agreement.
Third-Party Services. Certain features and functionalities within the Wind Stream Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Wind Stream Platform. Wind Stream does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Wind Stream Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Wind Stream Platform.
Dynamo Configuration and Capacity.
Licensed Volume. Customer’s use of the Wind Stream Platform is subject to the Licensed Volume set forth in the applicable Order Form. Wind Stream will provide Customer with a means to monitor its consumption of Seats, Storage, Compute Hours, and Tokens.
Storage and Compute Hours. Storage and Compute Hours are hard-capped at the amounts set forth in Customer’s Licensed Volume. Customer may not exceed these caps. Monthly Compute Hour grants do not roll over to subsequent months. Upon Customer’s written request, Wind Stream will configure an alert to notify Customer when its consumption of Storage or Compute Hours reaches ninety percent (90%) of the applicable Licensed Volume amount.
Tokens. Monthly Token grants do not roll over to subsequent months. If Customer’s Token consumption in any calendar month exceeds the Token allotment in Customer’s Licensed Volume, Customer will be charged an overage fee at the per-million-token rate set forth in the applicable Order Form, billed monthly in arrears. Token overage consumption is uncapped unless otherwise specified in the Order Form. Upon Customer’s written request, Wind Stream will configure an alert to notify Customer when its Token consumption reaches ninety percent (90%) of its monthly Token allotment.
Additional Seats. Customer may request additional Seats (up to the maximum number of additional Seats per Dynamo set forth in the applicable Order Form) by submitting a written request to Wind Stream. Wind Stream will provision such additional Seats promptly following approval. Additional Seats are billed monthly at the per-Seat rate set forth in the applicable Order Form.
Additional Dynamos. Any increase in Customer’s Dynamo count requires a mutually executed amended Order Form. Additional Dynamos purchased during an active Annual term will be co-terminous with the then-current term and priced on a pro-rata basis for the remaining months of the term.
Customer Elected Integrations. Customer acknowledges and agrees that the operation of certain features of the Wind Stream Platform may require integration with, or access to, products, platforms, services, or data sources not provided by Wind Stream that Customer elects to use with the Wind Stream Platform (collectively, “Customer Elected Integrations”). Customer is solely responsible for procuring, and facilitating access for Wind Stream to, all Customer Elected Integrations necessary for the applicable features of the Wind Stream Platform to function as intended. Customer will (i) obtain and maintain, at its own expense, and provide to Wind Stream, all valid accounts, API keys, tokens, certificates, accounts or configurations necessary for Wind Stream to access Customer Materials available through the Customer Elected Integrations on Customer’s behalf for the purpose of operating and providing the Wind Stream Platform, including, without limitation, the ability to read, write, create, update and delete such Customer Materials; and (ii) furnish all reasonable cooperation, information and assistance required by Wind Stream to integrate and test Customer Elected Integrations. Customer represents and warrants that it has obtained, and will maintain throughout the Term, all licenses, authorizations and consents necessary for the foregoing.
Preview Features. From time to time, Wind Stream may make non-production versions or preview features of the Wind Stream Platform available to Customer (“Preview Features”). Customer may access Preview Features at its sole risk. Preview Features are intended for evaluation purposes and may be subject to additional terms presented at the time of access. Notwithstanding anything in this Agreement, Wind Stream is not obligated to provide Customer with support for Preview Features or correct any bugs, defects, or errors therein, and will have no liability for any harm or damage arising out of or in connection with any Preview Features. Wind Stream may discontinue, suspend, or remove Preview Features (or any Customer Materials stored solely within Preview Features) at any time in its sole discretion and may never make them generally available.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Wind Stream reserves and, as between the Parties will solely own, the Wind Stream IP and all rights, title and interest in and to the Wind Stream IP and to the Wind Stream Platform, including all AI models and AI systems. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
Feedback. From time to time Customer or its employees, contractors or representatives may provide Wind Stream with suggestions, comments, feedback or the like with regard to the Wind Stream Platform (collectively, “Feedback”). Customer hereby grants Wind Stream a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Wind Stream’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Wind Stream Platform.
[FEES AND PAYMENT].
Fees. Customer will pay Wind Stream the non-refundable fees set forth in the applicable Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Wind Stream reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email).
Payments. Payments due to Wind Stream under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Wind Stream or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Wind Stream may suspend Customer’s access to the Wind Stream Platform until all payments are made in full. Customer will reimburse Wind Stream for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Wind Stream hereunder, other than any taxes imposed on Wind Stream’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Wind Stream hereunder, Customer will pay an additional amount, so that Wind Stream receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
[CONFIDENTIAL INFORMATION].
Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Wind Stream Platform and the Documentation will be deemed Confidential Information of Wind Stream. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict Wind Stream’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Wind Stream or its personnel acquire or obtain in connection with the performance of Wind Stream’s obligations hereunder.
Obligations and Permitted Disclosures. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Wind Stream may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Duration. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Disclosure for Due Diligence. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
CUSTOMER MATERIALS, INPUT AND DATA.
Ownership. Wind Stream acknowledges that, as between Customer and Wind Stream and except as set forth in Section [5(b)], Customer owns and retains all right, title and interest in and to all Customer Materials.
License. Customer hereby grants Wind Stream a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials and Input (defined below) solely for the purpose of hosting, operating, improving and providing the Wind Stream Platform, to enforce this Agreement, and to comply with applicable law.
Rights and Compliance. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials and Input (including any Personal Data provided or otherwise collected pursuant to Customer’s privacy notice) as contemplated by this Agreement; (ii) Wind Stream’s use of the Customer Materials or Input in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party; and (iii) Customer will not upload, submit, or transmit to the Wind Stream Platform any data subject to specific regulatory compliance regimes (including, without limitation, Protected Health Information as defined by HIPAA, cardholder data as defined by PCI DSS, or government-classified information) unless Customer has executed a corresponding compliance addendum with Wind Stream (such as a Business Associate Agreement) and received written confirmation from Wind Stream of coverage.
Input and Output. The Wind Stream Platform may generate output for Customer (each, “Output”) in response to: (i) Customer’s interaction, request or input; or (ii) Customer Materials uploaded or submitted to influence the Output or Wind Stream Platform (collectively, “Input”). As between Customer and Wind Stream, to the extent permitted by applicable law and subject to Section [2(g)]: (1) Customer owns and is responsible for all Input that Customer provides; and (2) subject to Customer’s compliance with this Agreement (including Section [2(b)] and [2(c)], Wind Stream assigns to Customer any right, title and interest in and to the Output generated by Customer’s Input that Wind Stream might otherwise have. Customer may not represent that Output from the Wind Stream Platform was human-generated. Wind Stream may use and modify Customer’s Input and Output to enforce its AUP and any applicable acceptable use policies or usage policies), to provide, maintain, and operate the Wind Stream Platform for Customer during the Term and to comply with applicable law.
No Training on Customer Materials. Wind Stream does not use Customer Materials, Input, or Output to train foundation models, or to train or fine-tune any Wind Stream-owned model without Customer’s express, opt-in written agreement pursuant to a separate data-use arrangement. Under Wind Stream’s agreements with third-party AI model providers, those providers do not use Customer Materials transmitted to them in connection with the Wind Stream Platform to train or improve their models. For clarity, this Section does not limit Wind Stream’s rights to derive and use Aggregate Data as set forth in Section 4(b), or Wind Stream’s operation of automated content filtering and policy enforcement controls (guardrails) that process Customer Materials during the ordinary course of providing the Wind Stream Platform.
Data Processing. To the extent Customer Materials or Input contain Personal Data, the DPA is incorporated into this Agreement by reference and governs the processing of such Personal Data. In the event of a conflict between the DPA and this Agreement with respect to the processing of Personal Data, the DPA controls.
REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party and constitute a valid and binding agreement of such Party. Customer further represents and warrants that it has all necessary rights to submit Customer Materials and Input to the Wind Stream Platform, and neither Customer Materials, Input, nor Customer’s use and provision of Customer Materials or Input to be made available through the Wind Stream Platform, nor any use of Customer Materials or Input by Wind Stream on or through the Wind Stream Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights, rights of publicity or privacy or result in the violation of any applicable law or regulation.
INDEMNIFICATION.
Wind Stream Indemnification. Subject to Section [7(b)], Wind Stream will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s use of the Wind Stream Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Wind Stream (including reasonable attorneys’ fees) resulting from such Claim.
Exclusions. Wind Stream’s obligations under Section [7(a)] will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials (including an Input or other infringing content contained therein); (iii) Customer’s failure to use any enhancements, modifications or updates to the Wind Stream Platform or Output that have been provided by Wind Stream; (iv) modifications to the Wind Stream Platform or Output by anyone other than Wind Stream; or (v) combinations of the Wind Stream Platform with software, data or materials not provided by Wind Stream.
IP Remedies. If Wind Stream reasonably believes the Wind Stream Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Wind Stream may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Wind Stream Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use of the Wind Stream Platform. If Wind Stream determines that neither alternative is commercially practicable, Wind Stream may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Wind Stream will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this [Section 7] will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Wind Stream Platform.
Customer Indemnification. Customer will defend Wind Stream against Claims arising from (i) any Customer Materials, Input, Output (or their processing or use by Wind Stream), including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) Customer’s breach of Section 5(c) (unauthorized upload of regulated data); and (iv) use of the Wind Stream Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the restrictions in Section [2(b)] or [2(c)] and in each case, will indemnify and hold harmless Wind Stream against any damages and costs awarded against Wind Stream or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
DISCLAIMERS.
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WIND STREAM PLATFORM OUTPUT AND OTHER WIND STREAM IP ARE PROVIDED ON AN “AS IS” BASIS, AND WIND STREAM MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE WIND STREAM IP, THE WIND STREAM PLATFORM, OUTPUT OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WIND STREAM HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WIND STREAM HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE WIND STREAM PLATFORM OR OUTPUT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, OR THAT THE CLIENT SOFTWARE WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR OPERATING SYSTEM CONFIGURATION.
Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Wind Stream Platform may generate the same or similar output for Wind Stream or a third party. For clarity, Wind Stream’s assignment of Output as set forth in Section [5(d)] does not extend to other Wind Stream customers’ output. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE WIND STREAM PLATFORM MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, WIND STREAM WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, INPUT, OUTPUT OR THEIR USE. Customer will evaluate the content, nature and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.
Client Software. Wind Stream may from time to time issue updates, upgrades, or patches to the Client Software and may discontinue support for or disable prior versions at its discretion. THE CLIENT SOFTWARE EXECUTES ON DEVICES CONTROLLED BY CUSTOMER OR ITS AUTHORIZED USERS. WIND STREAM DISCLAIMS ALL LIABILITY FOR ANY EFFECTS OF THE CLIENT SOFTWARE ON CUSTOMER’S OR ITS AUTHORIZED USERS’ DEVICES, LOCAL FILESYSTEMS, LOCAL DATA, OR OTHER SOFTWARE, EXCEPT TO THE EXTENT ARISING FROM WIND STREAM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WIND STREAM IS NOT RESPONSIBLE FOR THE AVAILABILITY OR VERSION CURRENCY OF THE CLIENT SOFTWARE ON ANY THIRD-PARTY DISTRIBUTION CHANNEL (INCLUDING PACKAGE MANAGERS AND SOFTWARE REPOSITORIES), OR FOR THE ACTIONS OF SUCH THIRD-PARTY DISTRIBUTION CHANNELS.
LIMITATIONS OF LIABILITY.
Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR (IV) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WIND STREAM IP OR THE PROVISION OF THE WIND STREAM PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Total Liability. IN NO EVENT WILL WIND STREAM’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE WIND STREAM IP OR THE PROVISION OF THE WIND STREAM PLATFORM EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO WIND STREAM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY WIND STREAM TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED AND WHETHER OR NOT WIND STREAM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
BASIS OF THE BARGAIN. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS [SECTION 9] ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN WIND STREAM AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
[TERM AND TERMINATION].
Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Survival. This Section [10(c)] and Sections 1, 2(b), 2(c), 2(j), 3, 4, 5, 6, 7, 8, 9, 10(d) and 12 survive any termination or expiration of this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section [2(a)] will terminate and subject to Section [10(e)], Customer will cease all use of the Wind Stream Platform and destroy or uninstall all copies of the Client Software in its or its Authorized Users’ possession; and (ii) Customer will return or destroy, at Wind Stream’s sole option, all Wind Stream Confidential Information in its possession or control, including permanent removal of such Wind Stream Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control and at Wind Stream’s request, certify in writing to Wind Stream that the Wind Stream Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
Data Return Period. For a period of thirty (30) days following the effective date of expiration or termination (the “Data Return Period”), Wind Stream will make Customer Materials available for export by Customer through the Wind Stream Platform or through such other means as Wind Stream may reasonably provide. After the Data Return Period, Wind Stream will delete Customer Materials from the Wind Stream Platform’s production environment within thirty (30) days in accordance with Wind Stream’s then-current Data Management Policy, subject to (i) retention required to comply with applicable law, (ii) retention of Customer Materials in encrypted backups until such backups are overwritten in the ordinary course of Wind Stream’s backup rotation (typically within sixty (60) days), and (iii) retention of audit records for one (1) year as required by Wind Stream’s Information Security Program
Authorized User Departure. Upon the departure, offboarding, or termination of an Authorized User, all Customer Materials, contributions, and data associated with that Authorized User remain part of Customer’s account and under Customer’s exclusive control. Wind Stream will not independently delete, transfer, or otherwise act on such data absent explicit written instruction from Customer. Customer is solely responsible for determining how such data is managed, retained, reassigned, or disposed of in accordance with Customer’s own policies and applicable law.
TRADEMARKS. Customer hereby grants Wind Stream a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Wind Stream Platform; and (ii) Wind Stream’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Wind Stream and in case studies. All goodwill and improved reputation generated by Wind Stream’s use of the Customer Marks inures to the exclusive benefit of Customer. Wind Stream will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder. Customer may opt out of public naming and case-study use by providing written notice to Wind Stream, in which case Wind Stream will not initiate new public references to Customer but may continue existing public references until such time as they are refreshed in the ordinary course.
GENERAL.
Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the applicable Order Form (or, for Wind Stream, to <legal@windstream.ai>) or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section [12(b)]. Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties and the remaining provisions of this Agreement will remain in full force and effect.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section [4] or, in the case of Customer, Section [2(b)], would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot or acts of God.
Subcontracting. Wind Stream may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Wind Stream remains responsible for the performance of each such Subcontractor. Subcontractors that process Personal Data on Wind Stream’s behalf are identified in the Sub-processor List and are subject to the DPA. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting or payment vendors, Wind Stream will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Wind Stream.
Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Wind Stream Platform, Client Software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical or biological weapons proliferation, missile systems or technology or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
U.S. Government End Users. The Wind Stream Platform, Client Software, and Documentation were developed solely at private expense and are “commercial products”, “commercial items” or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication or disclosure of the Wind Stream Platform, Client Software, and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Wind Stream Platform, Client Software, and Documentation.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any third party other than the Parties and their respective successors and assigns.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
WIND STREAM, INC.:
By:
Name:
Title:
Date:
[CUSTOMER NAME]:
By:
Name:
Title:
Date:
EXHIBIT C -- ACCEPTABLE USE POLICY
This Acceptable Use Policy (“AUP”) identifies prohibited uses of the Wind Stream Platform made available to you by Wind Stream. We do not allow the Wind Stream Platform to be used for the following:
Deceptive or misleading activities. This includes using the Wind Stream Platform to:
Impersonate another individual or organization without consent or legal right;
Engage in coordinated inauthentic behavior or disinformation campaigns;
Generate deceptive or misleading comments or reviews;
Deter participation in democratic processes, including misrepresenting voting processes or qualifications and discouraging voting.
Abusive or fraudulent activities. This includes using the Wind Stream Platform to:
Generate content for fraudulent activities, scams, phishing or malware;
Promote or facilitate the generation or distribution of spam;
Attempt to “jailbreak” or override or circumvent safety filters or intentionally direct the product or service to act in a manner that contravenes our policies;
Interfere with or negatively impact any of Wind Stream’s products or services;
Violate any natural person’s rights, including privacy rights as defined in applicable privacy law, including using biometrics (e.g., facial recognition) for identification;
Inappropriately use confidential or personal information;
Utilize Input or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping”).
Illegal, malicious or highly regulated activities. This includes using the Wind Stream Platform to:
Provide instructions on how to create or facilitate the exchange of illegal substance or goods;
Encourage or provide instructions on how to engage in or facilitate illegal services such as human trafficking or prostitution;
Provide instructions on how to commit, facilitate or encourage any type of crime;
Provide legal, medical/health or financial advice without review by a qualified professional and disclosure of the use of AI assistance and its potential limitations.
Activities with a high risk of economic or other harm. This includes using the Wind Stream Platform to:
Engage in multi-level marketing or pyramid schemes;
Automate high-stakes decisions in domains that affect an individual’s safety, rights or well-being, including law enforcement, migration, management of critical infrastructure, insurance, safety components of products, essential services, credit, employment, housing, education and social scoring;
Infer or attempt to infer people’s emotional states or protected characteristics without their consent;
Engage in political campaigning or lobbying, including generating campaign materials personalized to or targeted at specific demographics.
Violent, hateful, or threatening activities. This includes using the Wind Stream Platform to:
Further violent extremism or terrorism;
Describe, encourage, support or provide instructions on how to commit violent acts against persons (including self-harm), animals or property;
Encourage hate speech or discriminatory practices that could cause harm or adverse impact to individuals or communities based on their protected attributes, such as race, ethnicity, religion, nationality, gender, sexual orientation or any other identifying trait;
Shame, humiliate, bully, celebrate the suffering of or harass individuals;
Design, market, or distribute weapons, explosives or other dangerous materials.
Sexually explicit activities. This includes using the Wind Stream Platform to:
Generate pornographic content or content meant for sexual gratification, including activity that describes sexual intercourse, sexual acts, or sexual fetishes or promotes sexual services (excluding sex education and wellness[);]
Engage in erotic chats.
Child sexual exploitation or abuse activities. We strictly prohibit and will report to relevant authorities and organizations where appropriate any activity or content that exploits or harms children or describes, encourages, supports or promotes any form of child sexual exploitation or abuse in addition to Child Sexual Abuse Material (CSAM).
Sharing Platform Output
To help mitigate some of the risks associated with sharing synthetic or AI-generated content, we require you to do the following:
Manually review, or ensure there is manual review, for each item of Wind Stream Platform output before sharing, publishing or streaming;
In an accessible and easy to understand manner:
Clearly disclose the role of your use of the Wind Stream Platform in generating the Wind Stream Platform output; and
Clearly identify the Wind Stream Platform output as synthetic or AI-generated.
You should not represent Wind Stream Platform output as being either wholly generated by a human or wholly generated by AI; you must take ultimate responsibility for the Wind Stream Platform output being shared, published or streamed.
Wind Stream may monitor your usage of the Wind Stream Platform, and violations by you or your employees, contractors or agents of this AUP could result in action against your account, up to suspension or termination. We request that you notify us at [[insert email]] if our Wind Stream Platform outputs inaccurate, biased, or harmful content.
If you have any questions about whether your activity or use case is permitted or prohibited by this AUP, please email us at [[insert email]].