Section 10 deals with the indemnification they are offering. There are a lot of limitations. It's definitely not terrible, but it's not remotely close to what a business actually wants in an indemnification agreement.
In 10.1 (the indemnification from them to you) does not include "hold harmless", but in 10.2 (the indemnification from you to them) it does. That's not an accident, and those aren't meaningless words ;)
If you get sued and notify OpenAI of the suit, their lawyers take over completely. You must do anything they ask (as long as it is "reasonable"), including sitting for depositions, preserving evidence, participating in the discovery process, etc. If you want to have any involvement beyond being told what to do, you have to hire your own lawyers at your own expense. And at the end of it all, they will come to a settlement with the other side. As long as it is "reasonable", you must sign it.
> If there is a conflict between the Service Terms and your Agreement, the Service Terms will control
> This indemnity does not apply where: (i) Customer or Customer’s End Users knew or should have known the Output was infringing or likely to infringe, (ii) Customer or Customer’s End Users disabled, ignored, or did not use any relevant citation, filtering or safety features or restrictions provided by OpenAI, (iii) Output was modified, transformed, or used in combination with products or services not provided by or on behalf of OpenAI, (iv) Customer or its End Users did not have the right to use the Input or fine-tuning files to generate the allegedly infringing Output, (v) the claim alleges violation of trademark or related rights based on Customer’s or its End Users’ use of Output in trade or commerce, and (vi) the allegedly infringing Output is from content from a Third Party Offering.
If you knew or should have known, you're on your own. If you didn't follow the rules exactly, you're on your own. If you used the output in commerce and they claim a trademark violation, you're on your own.
And lastly, remember from the business terms that OpenAI's lawyers take control and you must do whatever they ask in terms of depositions and discovery? In dealing with all that information, if they see any indication that you no longer qualify for indemnification OpenAI is going to say goodbye, send all the legal bills to you.
It's better than nothing, for sure. But not all that confidence-inspiring.
Section 10 deals with the indemnification they are offering. There are a lot of limitations. It's definitely not terrible, but it's not remotely close to what a business actually wants in an indemnification agreement.
In 10.1 (the indemnification from them to you) does not include "hold harmless", but in 10.2 (the indemnification from you to them) it does. That's not an accident, and those aren't meaningless words ;)
If you get sued and notify OpenAI of the suit, their lawyers take over completely. You must do anything they ask (as long as it is "reasonable"), including sitting for depositions, preserving evidence, participating in the discovery process, etc. If you want to have any involvement beyond being told what to do, you have to hire your own lawyers at your own expense. And at the end of it all, they will come to a settlement with the other side. As long as it is "reasonable", you must sign it.
https://openai.com/policies/service-terms
> If there is a conflict between the Service Terms and your Agreement, the Service Terms will control
> This indemnity does not apply where: (i) Customer or Customer’s End Users knew or should have known the Output was infringing or likely to infringe, (ii) Customer or Customer’s End Users disabled, ignored, or did not use any relevant citation, filtering or safety features or restrictions provided by OpenAI, (iii) Output was modified, transformed, or used in combination with products or services not provided by or on behalf of OpenAI, (iv) Customer or its End Users did not have the right to use the Input or fine-tuning files to generate the allegedly infringing Output, (v) the claim alleges violation of trademark or related rights based on Customer’s or its End Users’ use of Output in trade or commerce, and (vi) the allegedly infringing Output is from content from a Third Party Offering.
If you knew or should have known, you're on your own. If you didn't follow the rules exactly, you're on your own. If you used the output in commerce and they claim a trademark violation, you're on your own.
And lastly, remember from the business terms that OpenAI's lawyers take control and you must do whatever they ask in terms of depositions and discovery? In dealing with all that information, if they see any indication that you no longer qualify for indemnification OpenAI is going to say goodbye, send all the legal bills to you.
It's better than nothing, for sure. But not all that confidence-inspiring.