AI Supplemental Terms

These AI Supplemental Terms ("Supplemental Terms"), dated as of the date of the Order Form reflecting Customer’s purchase of the applicable AI Feature, form a part of that certain Master Subscription between Tops Software of Florida, LLC d/b/a Enumerate (“Enumerate”). These Supplemental Terms apply to the AI Features (as defined herein) provided as part of the Services. In the event of a conflict between these Supplemental Terms and any other terms in the Agreement, these Supplemental Terms control solely with respect to the AI Features.

1. Definitions. For purposes of these Supplemental Terms, the following terms have the meanings set out below. Capitalized terms used but not defined in these Supplemental Terms shall have the meanings set out elsewhere in the Agreement.
   
   

   "AI AUP" means Enumerate's [AI Acceptable Use Policy located at [URL], as Enumerate may amend from time to time.]

   "AI Customer Input" means: Customer Data (including prompts or other instructions initiated by Customer) uploaded to an AI Feature or AI Customer Output to the extent re-entered as a prompt or otherwise uploaded to an AI Feature.

   "AI Customer Output" means information, data, materials, text, images, code, works, or other content that is generated by or otherwise output from an AI Feature in response to an AI Customer Input. “AI Customer Output” excludes Anonymous Data.

   "AI Feature" means the specific service offerings utilizing AI Technology as are specifically identified in the applicable Order Form as AI Features. An AI Feature is a Service for purposes of the Agreement.

   “AI Feature Output” all data Processed into an output by an AI Feature, including but not limited to AI Customer Output.

   "AI Technology" means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment.

   “Anonymous Data” means data regarding how Customer access, interacts with, and utilizes AI Features (“Usage Data”) and all AI Feature Output to the that any individual to whom the data pertains is not identifiable with reasonable efforts, including but not limited to information that has been encrypted or hidden through the use of other technology.

   "API" means any application programming interface Enumerate makes available in connection with an AI Feature as may be described in the Order Form. APIs are Services for purposes of the Agreement.

   "Customer Customizations" means modifications, enhancements, refinements, adaptations, customizations, and derivative works of the AI Features created or developed by Customer or its Authorized Users through fine-tuning, grounding, or similar methods described in applicable AI Feature documentation. For the avoidance of doubt, Customer Customizations do not include AI Customer Input, AI Customer Output, or any Processed Data or derivatives thereof.

   “Data Protection Laws” means all laws, including all applicable laws worldwide, including statutes, regulations, ordinances, and judge-made law, regarding information security, privacy, and data protection.

   “Intellectual Property Rights” means all intellectual property rights, including but not limited to copyrights, patents, trademarks and other source identifiers, trade secrets, and rights of publicity.

   “Personal Information” shall have the same meaning as provided under applicable Data Protection Laws, including meanings attributed to similar terms such as “personal data,” “personally identifiable information,” and “nonpublic personal information.”

   “Process,” “Processing,” or “Processed” means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction

   “Sensitive Personal Information” shall have the same meaning as provided under applicable Data Protection Laws, including meanings attributed to similar terms such as “sensitive data” and “sensitive personal data.”

   "Training Data" means any and all information, data, materials, text, prompts, images, code, and other content that is used to train, validate, test, retrain, or improve any AI Technology incorporated into or used with, in connection with, or in support of the AI Features.

2. Customer Responsibilities.
   1. Additional Use Restrictions. In addition to the use restrictions set out in the Agreement, Customer shall not and its Authorized Users shall not, directly or indirectly, and shall not permit any Authorized Users to: (a) access or use the AI Features or any AI Customer Output to develop, train, or improve any other AI Technology; (b) use web scraping, web harvesting, web data extraction, or any other method to extract data from the AI Features or any AI Customer Output; (c) reproduce Training Data other than Customer Data, engage in model extraction, or otherwise attempt to derive or gain access to any source code, algorithm, model, model weights and parameters, or other underlying AI Technology or component of the AI Features, in whole or in part; (d) use the AI Features to create or generate AI Customer Output or use AI Customer Output in a manner that Customer knows or should know infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person or violates any applicable Law; or (e) input or otherwise cause to be Processed: (i) any Sensitive Personal Information; or (ii) any other Personal Information unless: (1) such action is in compliance with applicable Data Protection Laws and in accordance with the Agreement, (2) Customer and Authorized User have all applicable consents and permissions, and (3) any transmittal or disclosure of Personal Information shall only be to the extent necessary to make use of the functionality of the applicable AI Feature for its intended use.
   2. AI Acceptable Use Policy. Customer and its Authorized Users shall comply with the AI AUP, which is hereby incorporated herein by reference.
   3. Third-Party AI Technology. The AI Features may include or incorporate third-party AI Technology such as foundation models ("Third-Party AI Technology"). Third-Party AI Technology may be subject to additional or different terms as described in additional service specific terms. Customer shall comply, and ensure that Authorized Users comply, with all such third-party terms, as such terms may be updated, modified, or added from time to time.
   4. Compliance with Laws. Customer and its Authorized Users shall comply with all laws, rules, and regulations applicable to their access and use of the AI Features and generation, use, and distribution of AI Customer Output.
   5. Use of AI Features and AI Customer Output. Customer is solely responsible for: (a) evaluating suitability of the AI Features for Customer's intended use; (b) Customer's and its Authorized Users' use and operation of the AI Features in accordance with relevant standards, including ensuring human oversight and monitoring; (c) evaluating (including by human review) AI Customer Output for accuracy, completeness, and other factors relevant to Customer's use before using, distributing, or relying on the AI Customer Output; and (d) Customer's decisions, actions, and omissions in reliance or based on the AI Customer Output.
3. Intellectual Property Rights.
   1. Ownership of AI Customer Input and AI Customer Output. As between Customer and Enumerate, Enumerate disclaims all right, title, and interest in and to all AI Customer Input and AI Customer Output to the extent protectible under any Intellectual Property Rights regime relating thereto, excluding such rights as may exist in pre-existing or independently developed technology, know how, information (including but not limited to Enumerate Confidential Information), or content that may exist in such AI Customer Input and/or AI Customer Output. Furthermore, and notwithstanding the above, Enumerate owns all rights in Usage Data and Anonymous Data, including but not limited to all Intellectual Property Rights therein, and Customer agrees to, and does hereby, assign, transfer, and convey to Enumerate all present and future rights in and to such data to Enumerate.
   2. Enumerate Use of AI Customer Input and AI Customer Output. Customer hereby grants Enumerate a royalty-free, fully paid-up, irrevocable, non-exclusive, transferable, and sublicensable license, exercisable by and through its Enumerate Personnel, to Process the AI Customer Input and AI Customer Output as may be necessary for Enumerate to provide the Services to Customer. Customer acknowledges that Enumerate will use, modify, and adapt Usage Data and any Anonymous Data to develop, train, retrain, tune, validate, adapt, modify, enhance, or improve the AI Features and Enumerate’s other AI Technology and for such other lawful purposes in its discretion.
   3. Customer Customizations. To the extent AI Features and applicable Order Form allow for Customer Customizations, such Customer Customizations are Enumerate IP. Customer agrees to and does hereby assign, transfer, and otherwise convey to Enumerate its right, title, and interest, if any, in and to all Customer Customizations. However, as against third parties, Customer shall have the exclusive right to access and use Customer Customizations solely for Customer's internal use by Authorized Users in accordance with the Agreement. Enumerate will take reasonable measures so as to not allow any third party to access or use Customer Customizations during or after the Term. For the avoidance of doubt, nothing shall prevent Enumerate from taking any actions as it deems necessary or prudent for Enumerate to fulfill its obligations under the Agreement or comply with applicable Law. Following expiration or termination of the Agreement, Enumerate may permanently delete Customer Customizations from all systems Enumerate controls, unless otherwise required by applicable Law.
4. Confidentiality. Without impairing Enumerate’s rights to AI Customer Input Data and AI Customer Output Data, and subject thereto, Enumerate shall treat AI Customer Input and AI Customer Output, to the extent not owned by Enumerate, as Confidential Information.
5. Customer Warranties. In addition to Customer’s warranties and obligations contained elsewhere in the Agreement, Customer represents, warrants, and covenants that: (a) Customer has and will maintain all necessary rights, consents, and permissions required to enter or submit AI Customer Input to or through the AI Features, including for the purposes of (i) generating AI Customer Output in response to such AI Customer Input and (ii) creating Customer Customizations (as may be permitted), so that, as Processed in accordance with the Agreement, it does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable law; and (b) if and to the extent Customer inputs Personal Information through an AI Feature, (i) such action is in compliance with all applicable Data Protection Laws and permitted under the Agreement and any applicable data processing addendum, and (ii) Such Personal Information is minimized to the reasonable extent necessary for the intended use of the AI Feature and Customer has implemented appropriate technical and organizational safeguards so as to achieve such minimization. Customer acknowledges and agrees that it is solely responsible for ensuring its and its Authorized Users’ compliance with this Agreement and determining whether submission of Personal Information to the AI Features is appropriate for its intended use and for ensuring that any such Personal Information is limited to the minimum necessary for such purpose.
6. Disclaimer of Enumerate Warranties. ANY AND ALL THIRD-PARTY AI TECHNOLOGY AND AI FEATURE OUTPUT, IS PROVIDED "AS IS," AND ENUMERATE SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AS MAY BE BASED ON USAGE IN TRADE OR COURSE OF DEALING. CUSTOMER ACKNOWLEDGES THAT, GIVEN THE NATURE OF THE SERVICES AND AI TECHNOLOGY, PROCESSED DATA: (A) MAY BE INACCURATE, MISLEADING, BIASED, OR OFFENSIVE; (B) MAY BE THE SAME AS OR SIMILAR TO OUTPUT THE SERVICES GENERATE FOR OTHER CUSTOMERS; (C) MAY NOT QUALIFY FOR INTELLECTUAL PROPERTY PROTECTION; AND (D) MAY BE SUBJECT TO THIRD-PARTY TERMS, INCLUDING, AS APPLICABLE, OPEN SOURCE LICENSES. ENUMERATE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING CUSTOMER CUSTOMIZATIONS.
7. Suspension or Termination. In addition to Enumerate's rights under the Agreement, Enumerate may suspend or terminate Customer's or any Authorized User's access to or use of all or any part of the AI Features or any Customer Customizations, without incurring any resulting obligation or liability, if Enumerate believes, in its and sole reasonable discretion, that such suspension or termination is necessary or required for Enumerate to comply with applicable law or for its safety or for the safety of its systems or other customers or users.
8. Indemnification.
   1. Exclusions to Infringement Indemnification by Enumerate. In addition to any indemnification exclusions set out in the Agreement, Enumerate's indemnification obligations of the Agreement will not apply to the extent that any such Action arises from Training Data, AI Customer Input, AI Customer Output, Third-Party AI Technology, and Customer Customizations (if any).
   2. Indemnification by Customer. Customer shall indemnify, defend (at Enumerate’s option), and hold harmless Enumerate and its officers, directors, employees and agents from any and all actions, demands, lawsuits, damages, liabilities, costs, charges, and expenses, including reasonable attorneys’ fees, arising from any claims against Enumerate: (a) alleging that the AI Customer Input, AI Customer Output, data Processing, or any other use thereof in accordance with this Agreement infringes or misappropriates such third party's Intellectual Property Rights or other rights; (b) arising out of Customer's or any Authorized User's violation of these Supplemental Terms or applicable Laws; (c) arising out of any use of or reliance on AI Customer Output or any Processed Data by anyone ; or (d) arising out of Customer Customizations if any; provided that Customer may not settle any Action against Enumerate unless Enumerate consents to such settlement, and further provided that Enumerate will have the right, at its option, to defend itself against any such Action or to participate in the defense thereof by counsel of its own choice.
9. Modification. These Supplemental Terms may be amended or modified by Enumerate in its reasonable discretion to the extent that such amendment or modification does not adversely affect Customer in any material way.