This OpenAI Enterprise Agreement (“Agreement”) governs Customer’s use of OpenAI’s Services in connection with the Order Form (“Order Form”) entered into between OpenAI, LLC (“OpenAI”) and Customer. Capitalized terms not defined in this Agreement will have the meaning set forth in the Order Form. Any conflict between the Order Form and this Agreement will be resolved in favor of the Order Form. 

Subject to the terms and conditions of this Agreement, OpenAI will provide Customer with access to the OpenAI products and services listed on the Order Form (“Services”) and hereby grants Customer a non-exclusive right to access and use the Services during the Term. Customer must create an account and receive access credentials to access the Services. Account information provided by Customer must be accurate and up to date, and Customer may not share or otherwise make the access credentials available to third parties (other than personnel and contractors acting on Customer’s behalf). Customer is responsible for all activities that occur using Customer’s access credentials. 

OpenAI owns all right, title and interest in and to the Services, and Customer does not receive any rights to the Services except as explicitly permitted herein. Without limiting the foregoing, Customer will not, and will not permit any third party to: (i) use the Services in a manner that violates any applicable laws, safety and usage guidelines provided at https://openai.com/policies/usage-policies, terms applicable to particular services provided at https://openai.com/api/policies/service-terms/ and other requirements provided by OpenAI (collectively, “OpenAI Policies”); (ii) use the Services in a manner that infringes, misappropriates or otherwise violates any party’s intellectual property rights; (iii) modify or create derivative works of the Services; (iv) reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks, or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Services (except to the extent such restrictions are contrary to applicable law); (v) use the Services to develop foundation models or other large scale models that compete with OpenAI; (vi) use any method to extract data from the Services other than as permitted through the API; or (vii) buy, sell, or transfer API keys from, to or with a third party without OpenAI’s prior written consent. 

Customer and its end users may provide input to be processed by the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). Input and Output are collectively “Customer Content.” As between the parties and to the extent permitted by applicable law, Customer owns all Customer Content. OpenAI will only use Customer Content as necessary to provide and maintain the Services for Customer, comply with applicable law, and enforce OpenAI Policies relating to safety. For avoidance of doubt, OpenAI will not use Customer Content to develop and improve the Services. Customer will ensure that the use of Customer Content will not violate any applicable law or OpenAI Policies. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Content. 

Customer acknowledges that due to the nature of machine learning, Output may not be unique and the Services may generate the same or similar output for OpenAI or third parties. For the avoidance of doubt, Customer shall not own output generated by third parties; such output will not be considered Customer Content if it was created without the use of Input provided by Customer. 

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. These confidentiality provisions supersede any existing non-disclosure or confidentiality agreements between the parties. 

OpenAI will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) secure the Services and Customer Content 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 risk assessment and regular testing. As part of this information security program, OpenAI: (a) implements and enforces policies related to electronic, network, and physical monitoring and data storage, transfer, and access; (b) deploys production infrastructure behind VPNs where possible; (c) requires multi-factor authentication for employees; (d) configures network security, firewalls, accounts, and resources for least-privilege access; (e) maintains a logging and incident response process; (f) maintains corrective action plans to respond to potential security threats; and (g) conducts periodic reviews of the security of OpenAI and adequacy of its information security program as aligned to industry best practices and its policies and procedures. 

Customer will pay for use of Services according to the terms set forth in the Order Form. All Fees are nonrefundable except as otherwise provided herein. Fees are exclusive of taxes, which OpenAI will charge as required by applicable law in connection with this transaction. Customer will provide necessary information to OpenAI to determine OpenAI’s tax collection obligations for Customer and providing any supporting documentation to claim an exemption for such taxes. 

Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach. Either party may terminate this Agreement, upon written notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, including the payment of amounts due, which have accrued up to the date of such termination or expiration. Upon termination or expiration of this Agreement, the provisions of Sections 3, 4, and 6-12 shall survive and shall continue in full force and effect in accordance with their terms.

8.1 OpenAI warrants that (a) the Services will conform in all material respects with the specifications provided by OpenAI, including in OpenAI documentation, (b) it will perform the Services in a professional and workmanlike manner with employees having a level of skill commensurate with the requirements of this Agreement, and (c) the Services do not to OpenAI’s knowledge infringe any third party intellectual property right.

8.2 Except for the warranties in this section, OpenAI hereby disclaims all warranties, express or implied, including all implied warranties of merchantability, fitness for a particular purpose and title. 

9.1 OpenAI agrees to indemnify, defend, and hold harmless Customer against any liabilities, damages and costs (including reasonable attorneys’ fees) payable to a third party arising out of a third party claim alleging that the permitted use of the Services infringe any third party intellectual property right. OpenAI will have no obligation for any claim to the extent based upon (i) unauthorized use of the Services or breach of this Agreement by Customer or its end user, (ii) combination of the Services with products, services, or software not provided by or on behalf of OpenAI, (iii) modification of the Services by any party other than OpenAI, (iv) the Customer Content, (v) any activity after OpenAI has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services, (vi) Customer’s failure to comply with laws, regulations, or industry standards applicable to Customer, or (vii) any Beta Services. If OpenAI reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, OpenAI will procure, at OpenAI’s expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non- infringing, or, in the event the preceding is infeasible or not commercially practicable, OpenAI may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.

9.2 Customer agrees to indemnify, defend, and hold harmless OpenAI against any liabilities, damages and costs (including reasonable attorneys' fees) payable to a third party arising out of a third party claim related to (a) the use of the Services in violation of this Agreement (including violation of OpenAI Policies); (b) applications, products or services developed by Customer which use the Services; and (c) Inputs provided by Customer or its end users.

9.3 A party seeking indemnity shall provide the indemnifying party with prompt written notice upon becoming aware of any claim, reasonable cooperation in the defense of or investigation of the claim, and allow the indemnifying party sole control of defense and settlement of the claim, provided that the party seeking indemnity is entitled to participate in its own defense at its sole expense. The indemnifying party shall not enter into any settlement or compromise of any such claim without prior written consent of the other party, which shall not be unreasonably withheld, except that the indemnifying party may without such consent enter into any settlement of a claim that resolves the claim without liability to the other party and without impairment to any of the other party’s rights or requiring the other party to make any admission of liability. 

Except for Customer’s breach of Section 2 (Restrictions), in no event will either party be liable for (a) any indirect, punitive, incidental, special or consequential damages arising out of this Agreement or the delay or inability to use the Services (including lost profits) or (b) any other damages in excess of the total amount paid (and payable) to OpenAI in the twelve (12) month period prior to the date of the claim, in each case whether based in contract, tort, strict liability or otherwise, and even if either party has been advised of the possibility of damages. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy and to the maximum extent permitted under applicable law. 

Each party will comply with all applicable import, re-import, sanctions, anti- boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Customer represents and warrants that Customer and its financial institutions are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority (collectively, “Restricted Lists”). Without limiting the foregoing, Services and OpenAI Proprietary Information may not be used in or for the benefit of, or exported or re-exported into US embargoed countries or to anyone on any Restricted List, and Customer will exclude, control, screen or limit (i) the regions from which Customer end users may access or use Customer applications that use the Services, and (ii) the persons or organizations who are Customer end users accessing the Services, to comply with all applicable laws related to Embargoed Countries or Restricted Party Lists, including any requirements or obligations to know end users directly. OpenAI is not responsible for and does not have the means to know Customer end users. 

If Customer provides feedback to OpenAI regarding the Services (“Feedback”), Customer grants to OpenAI the right to use and exploit such Feedback without restriction or compensation. 

OpenAI may use Customer’s name and logo on its website or in marketing materials, subject to any brand usage guidelines provided to OpenAI. Customer may use OpenAI’s name and logo to accurately describe its use of the Services and in compliance with OpenAI’s Brand Guidelines available at: https://openai.com/brand. 

The Order Form and this Agreement (including the OpenAI Policies) are the entire agreement between Customer and OpenAI with respect to the subject matter and supersede any prior or contemporaneous agreements whether written or oral. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. Neither party shall have the right to assign this Agreement, except that OpenAI may assign its rights and obligations without consent to an affiliate, and either party may assign its rights and obligations to a successor to substantially all its relevant assets or business, provided that the assigning party provides reasonable prior written notice of the assignment (and in no event less than 10 days). No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail or major overnight delivery courier service to the address specified in the Order Form or such other address as may be properly specified by written notice hereunder. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.