Terms of Service
These Terms of Service (“Terms”) govern access to and use of the services offered under the Divergent Labs name by Offchain Holding B.V., a private limited company incorporated under the laws of the Netherlands, with its registered office at Oudezijds Voorburgwal 171, Amsterdam, the Netherlands (“Divergent Labs”, “we”, “us” or “our”).
Please read these Terms carefully. By accepting them, or by accessing or using the Services, you agree to be bound by them.
1. Definitions
In these Terms, the following capitalised terms have the meanings set out below.
1.1 “Agreement” means these Terms together with the Privacy Policy, the Data Processing Agreement and any order form or other document that expressly incorporates these Terms.
1.2 “Customer” or “you” means the natural or legal person that accepts these Terms and on whose behalf an Organisation is created. Where an individual accepts these Terms on behalf of a legal entity, “Customer” means that entity.
1.3 “Customer Content” means all data, software, code, files, datasets, model weights, prompts, instructions and other materials that you or your Users submit to, store in or process through the Services, and all output generated by the Services from them.
1.4 “Credentials” means passwords, passkeys, cryptographic keys, API keys, access tokens and any other means of authenticating to the Services.
1.5 “Credit” means a prepaid balance that can be applied to Fees.
1.6 “Data Processing Agreement” means our data processing agreement published at /dpa, as amended from time to time.
1.7 “Fees” means the amounts payable for the Services in accordance with clause 8.
1.8 “Organisation” means the account in the Services to which Workloads, Credit, usage and Users are attached.
1.9 “Services” means the Divergent Labs websites, dashboard, application programming interfaces, command-line and other client software, and the computing, storage, sandbox environment and model inference services made available through them.
1.10 “User” means any individual whom you authorise to access the Services on behalf of your Organisation, and any automated system, including an artificial intelligence agent, that accesses the Services using your Credentials.
1.11 “Workload” means any job, process, virtual machine, sandbox environment, endpoint, storage volume or other resource that you create or run through the Services.
2. Acceptance and eligibility
2.1 You accept these Terms by creating an account, by signing in to the Services, or by otherwise accessing or using the Services.
2.2 If you accept these Terms on behalf of a legal entity, you represent and warrant that you are authorised to bind that entity.
2.3 You must be at least 18 years old and legally capable of entering into a binding contract to use the Services.
2.4 The Services are intended for business and professional use. If you are a consumer, clause 16 applies, and nothing in the Agreement limits any right you have under mandatory consumer protection law.
2.5 You represent that you are not subject to sanctions administered by the European Union, the United Nations, the United Kingdom or the United States, nor owned or controlled by a person who is, and that you will not use the Services in or for the benefit of a country or territory subject to comprehensive sanctions.
3. Accounts and Organisations
3.1 You must provide accurate and complete registration information and keep it up to date, including a working email address at which notices can be received.
3.2 You are responsible for all activity that occurs within your Organisation or under your Credentials, whether or not you authorised or were aware of it, including activity by your Users and by automated systems acting on your instructions.
3.3 You are responsible for assigning roles and permissions to your Users and for ensuring that each User complies with the Agreement.
3.4 You must keep your Credentials confidential and secure. You must notify us without undue delay if you become aware of any unauthorised access to your Organisation or any compromise of your Credentials.
4. The Services
4.1 Provision. Subject to the Agreement and to payment of the applicable Fees, we grant you a non-exclusive, non-transferable, non-sublicensable right during the term of the Agreement to access and use the Services for your internal business purposes and to build and operate your own products and services.
4.2 Suppliers. We may use third-party suppliers, including cloud infrastructure, compute and model inference providers, to provide the Services. We remain responsible to you for the performance of the Services in accordance with the Agreement. Availability of particular hardware types, capacity and regions is not guaranteed.
4.3 Beta Services. Features or services identified as “beta”, “preview”, “private beta”, “early access” or similar (“Beta Services”) are provided for evaluation, may be incomplete, and may be modified, suspended or discontinued at any time. We may discontinue a Beta Service on 30 days’ notice. If we do so, we will refund any unused prepaid Fees paid specifically for that Beta Service.
4.4 Availability. Unless otherwise agreed in writing, we do not commit to any service level. We will use commercially reasonable efforts to keep the Services available and to inform you of material incidents.
4.5 Modifications. We may modify the Services from time to time. Where a modification materially reduces the functionality of a paid Service, we will give you at least 30 days’ prior notice, except where a shorter period is required for security, legal or regulatory reasons.
5. Customer Content
5.1 Ownership. As between you and us, you retain all rights, title and interest in and to Customer Content. We do not acquire any rights in Customer Content other than those expressly granted in this clause.
5.2 Licence to us. You grant us a worldwide, non-exclusive, royalty-free licence, for the term of the Agreement, to host, store, copy, transmit, process and display Customer Content solely to the extent necessary to provide, secure and support the Services and to comply with applicable law.
5.3 Outputs. As between you and us, and to the extent permitted by applicable law, you own the output generated by the Services from your Customer Content, including model outputs and trained model weights. Output generated for other customers may be similar or identical to yours, and nothing in the Agreement gives you rights in it.
5.4 No training. We will not use Customer Content to train, fine-tune or evaluate any machine learning model, other than models you train or evaluate for yourself through the Services, and we will not sell Customer Content. We will only engage model inference providers that are contractually prohibited from using Customer Content to train their models.
5.5 Access by personnel. Our personnel will only access Customer Content (a) to provide support that you have requested, (b) to investigate or prevent a security incident, fraud or a suspected breach of the Agreement, or (c) to comply with applicable law or a binding order of a competent authority. We may monitor usage metadata, such as resource consumption and network traffic volumes, to operate the Services and to detect abuse.
5.6 Your warranties. You represent and warrant that you have obtained all rights, licences, consents and permissions necessary for us to process Customer Content as contemplated by the Agreement, and that Customer Content and its processing through the Services do not infringe the rights of any third party or violate applicable law.
5.7 Personal data. To the extent Customer Content contains personal data, the Data Processing Agreement applies and forms part of the Agreement.
5.8 Backups. The Services are not a backup service. You are responsible for maintaining independent copies of Customer Content.
6. Acceptable use
6.1 You shall not, and shall ensure that your Users do not, use the Services to:
- (a) access, probe, scan, test the vulnerability of, or interfere with any system or network without the owner’s prior written authorisation, or conduct denial-of-service attacks;
- (b) mine cryptocurrency or perform other proof-of-work or proof-of-space computation;
- (c) send unsolicited bulk communications, or operate open relays, open proxies, or anonymisation or VPN services for third parties;
- (d) create, host or distribute malware, operate botnets or command-and-control infrastructure, or engage in phishing;
- (e) circumvent usage limits, quotas, billing, access controls or the isolation between customers, or create multiple accounts to obtain promotional Credit;
- (f) create, store or distribute child sexual abuse material or any content that sexually exploits minors;
- (g) harass, threaten, defame or incite violence against any person, conduct unlawful surveillance, or generate non-consensual intimate imagery of real persons;
- (h) develop or assist in developing biological, chemical, nuclear or radiological weapons;
- (i) infringe intellectual property, privacy or other rights of any person;
- (j) violate applicable law, including export control and sanctions law; or
- (k) resell or sublicense access to the Services as such without our prior written consent. Offering your own products or services built on the Services is permitted.
6.2 You are responsible for all network traffic originating from your Workloads. We may restrict or block particular network ports, protocols or destinations where reasonably necessary to protect the Services, our suppliers or third parties.
6.3 If you discover a security vulnerability in the Services, you shall report it to us promptly and shall not exploit it. We will not take action against good-faith security research that complies with this clause.
6.4 We will report child sexual abuse material and other unlawful content to the competent authorities where required or appropriate.
7. Third-party components
7.1 Certain models, software and data made available through the Services are provided by third parties under their own licence terms or use policies (“Third-Party Terms”). Where we identify applicable Third-Party Terms in our documentation, your use of the relevant component is subject to them.
7.2 You are solely responsible for software, images and packages that you choose to run within your Workloads, including compliance with their licences.
8. Fees and payment
8.1 Fees. Fees are set out on our pricing page or in the dashboard and are calculated on the basis of metered usage and any applicable subscription. Unless stated otherwise, Fees are expressed in US dollars and exclusive of VAT and other taxes.
8.2 Price changes. We may change the Fees by giving at least 30 days’ notice of any increase. Price reductions take effect on publication.
8.3 Subscriptions. Paid subscription plans renew automatically at the end of each billing period until cancelled. Cancellation takes effect at the end of the current billing period, and Fees already paid for that period are not refunded. Usage allowances included in a subscription are applied before other Credit and expire at the end of the period for which they were granted.
8.4 Credit. Usage is paid from Credit purchased in advance or charged to the payment method on file where automatic top-up is enabled. Purchased Credit does not expire while your Organisation remains active. Promotional and included Credit expires as stated when granted, has no cash value and is not transferable. Purchased Credit is non-refundable except as required by law or as expressly provided in the Agreement.
8.5 Payment processing. Payments are processed by our payment service provider. By providing a payment method, you authorise us and our payment service provider to charge it for Fees as they fall due.
8.6 Usage limits and insufficient Credit. You may set a usage limit for your Organisation. If that limit is reached, or if your Organisation has insufficient Credit and no valid payment method, we may stop or pause running Workloads without further notice. In doing so, we will preserve stored data rather than delete it where reasonably practicable. We are not obliged to restart Workloads. Storage Fees continue to accrue for preserved data, and usage incurred before Workloads are stopped remains payable.
8.7 Taxes. You are responsible for all taxes, levies and duties applicable to your purchases, other than taxes on our income. Where the reverse-charge mechanism applies, you shall account for VAT in your jurisdiction.
8.8 Disputed charges. You must notify us in writing of any disputed charge within 60 days of the date of the charge, failing which the charge is deemed accepted. You agree to contact us before initiating a chargeback.
8.9 Late payment. If a payment fails or is reversed, we may suspend the Services in accordance with clause 9 until all outstanding amounts are paid, and recover any reasonable costs of collection.
9. Suspension
9.1 We may suspend your access to all or part of the Services, with immediate effect and without prior notice where necessary, if:
- (a) your use of the Services poses a security risk to the Services, our suppliers, other customers or any third party;
- (b) we reasonably believe you are in breach of clause 6;
- (c) any amount owed by you is overdue; or
- (d) suspension is required by applicable law or by a competent authority.
9.2 We will limit any suspension in scope and duration to what is reasonably necessary, inform you of its reason unless prohibited by law or where doing so would defeat its purpose, and lift it once the cause has been remedied.
10. Confidentiality
10.1 Each party shall keep confidential all non-public information disclosed by the other party that is marked as confidential or would reasonably be understood to be confidential (“Confidential Information”), shall use it only for the purposes of the Agreement, and shall disclose it only to its employees, contractors and suppliers who need to know it and are bound by obligations of confidentiality no less protective than this clause. Customer Content is your Confidential Information.
10.2 Clause 10.1 does not apply to information that is or becomes publicly available through no fault of the receiving party, was lawfully known to the receiving party before disclosure, is independently developed, or is lawfully received from a third party without restriction. A party may disclose Confidential Information where required by law, provided it gives the other party prior notice where legally permitted.
11. Intellectual property
11.1 The Services, including all software, models, documentation, trademarks and other materials provided by us, and all intellectual property rights in them, are and remain the property of Divergent Labs or its licensors. No rights are granted to you other than those expressly set out in the Agreement.
11.2 Software that we make available under an open-source licence is governed by that licence.
11.3 If you provide suggestions or feedback regarding the Services, we may use them without restriction or obligation to you.
11.4 We will not use your name or logo in our marketing without your prior written consent.
12. Warranties and disclaimers
12.1 We will provide the Services with reasonable skill and care.
12.2 Except as expressly provided in the Agreement and to the maximum extent permitted by law, the Services are provided “as is” and “as available”, and we disclaim all other warranties, whether express, implied or statutory, including warranties of merchantability, fitness for a particular purpose and non-infringement.
12.3 Output generated by machine learning models and automated agents may be inaccurate, incomplete or inappropriate. You are responsible for evaluating output before relying on it, and for any decisions you take on the basis of it.
13. Limitation of liability
13.1 Nothing in the Agreement limits or excludes liability for death or personal injury caused by negligence, for fraud, for damage caused by the intent or deliberate recklessness (opzet of bewuste roekeloosheid) of a party or its management, or for any other liability that cannot be limited or excluded under applicable law.
13.2 Subject to clause 13.1, neither party shall be liable for any loss of profit, revenue, business, goodwill or anticipated savings, or for any indirect, incidental, special or consequential loss or damage, however arising.
13.3 Subject to clause 13.1, each party’s aggregate liability arising out of or in connection with the Agreement, whether in contract, tort or otherwise, shall not exceed the greater of (a) the total Fees paid by you in the twelve months preceding the event giving rise to the liability, and (b) €100.
13.4 The limitations in this clause 13 do not apply to your obligation to pay Fees or to your obligations under clauses 6 and 14.
13.5 In the event of dissolution (ontbinding) of the Agreement, performance rendered before the dissolution shall not be undone, and amounts invoiced for such performance remain payable.
14. Indemnification
14.1 You shall indemnify and hold harmless Divergent Labs from and against any claim brought by a third party arising out of Customer Content or out of your or your Users’ breach of clause 6, including any damages awarded and reasonable legal costs incurred.
14.2 We shall notify you promptly of any such claim, allow you to control its defence and settlement (provided that no settlement imposes any obligation on us without our consent), and provide reasonable assistance at your expense.
15. Term and termination
15.1 The Agreement commences on your acceptance of these Terms and continues until terminated in accordance with this clause.
15.2 You may terminate the Agreement at any time by closing your Organisation or by giving us written notice.
15.3 We may terminate the Agreement (a) for convenience, on 30 days’ written notice, in which case we will refund any unused purchased Credit; (b) with immediate effect, if you commit a material or repeated breach of clause 6, fail to pay amounts due, or if termination is required by law; or (c) on 14 days’ written notice, if you commit any other material breach of the Agreement and fail to remedy it within that period.
15.4 On termination, your right to use the Services ends and all running Workloads are stopped. For 30 days after termination, you may retrieve Customer Content that we still hold, unless we terminated under clause 15.3(b) or applicable law prohibits it. After that period we will delete Customer Content from the Services. Deleted data may persist in backups until those are overwritten in the ordinary course.
15.5 We will retain records that we are required to keep by law, including financial and tax records, for the applicable statutory period.
15.6 Clauses 5.1, 5.3, 8 (in respect of amounts accrued), 10, 11, 13, 14, 15.4, 15.5 and 18 survive termination.
16. Consumers
16.1 This clause applies only if you are a consumer resident in the European Union.
16.2 You expressly request that we begin performance of the Services immediately upon purchase. You may withdraw from a purchase within 14 days without giving a reason. If you withdraw, you will owe a proportionate amount for the Services provided up to the time of withdrawal, and we will refund the remainder.
16.3 Clauses 13.2 and 13.3 apply to you only to the extent permitted by the mandatory consumer law of your country of residence. You may bring proceedings in the courts of your country of residence.
17. Amendments
17.1 We may amend these Terms from time to time. We will notify the owners of your Organisation by email of any amendment that materially affects your rights or obligations at least 30 days before it takes effect, and indicate the date of the latest amendment at the top of these Terms.
17.2 If you do not agree to an amendment, you may terminate the Agreement before it takes effect, in which case we will refund any unused purchased Credit. Continued use of the Services after an amendment takes effect constitutes acceptance of it.
17.3 Amendments required by law or relating solely to new features may take effect on shorter notice.
18. Governing law and jurisdiction
18.1 The Agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
18.2 Subject to clause 16.3, the competent court in Amsterdam, the Netherlands, has exclusive jurisdiction over any dispute arising out of or in connection with the Agreement.
18.3 The parties shall first attempt in good faith to resolve any dispute amicably by written notice to the other party.
19. General
19.1 Force majeure. Neither party is liable for any failure or delay in performance caused by events beyond its reasonable control, including failures of third-party infrastructure, provided it uses reasonable efforts to mitigate their effects. This clause does not relieve you of your obligation to pay Fees.
19.2 Assignment. You may not assign or transfer the Agreement without our prior written consent. We may assign the Agreement to an affiliate or to a successor to all or substantially all of the business to which it relates, on notice to you.
19.3 Severability. If any provision of the Agreement is held invalid or unenforceable, the remaining provisions remain in full force, and the invalid provision shall be replaced by a valid provision that most closely reflects its original intent.
19.4 Waiver. No failure or delay in exercising any right constitutes a waiver of that right.
19.5 Entire agreement. The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior agreements and understandings. Any purchase order or other terms submitted by you are excluded.
19.6 Order of precedence. In case of conflict, a signed order form prevails over the Data Processing Agreement, which prevails over these Terms, in each case only in respect of its subject matter.
19.7 Notices. We will send notices to the email addresses of the owners of your Organisation. You will send notices to the address in clause 20. Notices by email are deemed received on the next business day after sending.
19.8 Language. The Agreement is drawn up in English. In the event of any conflict between the English text and a translation, the English text prevails.
20. Contact
Offchain Holding B.V. Oudezijds Voorburgwal 171 Amsterdam, the Netherlands nick@divergentlabs.xyz