AI时代保护使用者的基本条款

aidj · 发表于 4-5-2026 06:51 PM

[center]ARTICLE [X] — UNLIMITED PRE-ASI LIABILITY OF CREATOR/BUILDER[/center]

Article [X].1 — Definitions

For the purposes of this Article, the following definitions shall apply:

(a) "Artificial Super Intelligence" or "ASI" means a computational system that has been formally certified pursuant to Article [X].6 as having demonstrably and consistently surpassed human-level cognitive performance across all of the following domains: logical reasoning, mathematical computation, natural language understanding and generation, scientific discovery, creative problem-solving, strategic planning, and emotional and social intelligence — without material limitation or exception in any such domain.

(b) "Covered System" means any software system, pipeline, algorithm, model, application, API, or platform designed, developed, deployed, or maintained by the Liable Party, including all components, sub-systems, integrations, and dependencies within the Liable Party's direct operational control.

(c) "System Flow" means the end-to-end processing, transmission, transformation, and output of data, instructions, or signals within the Covered System, including but not limited to: inference pipelines, data processing workflows, model execution, API responses, and automated decision outputs.

(d) "Covered Failure" means any one or more of the following events attributable to the Liable Party's acts, omissions, design defects, or operational deficiencies within the Covered System:

(i) unreliable, inconsistent, or erroneous System Flow output;
(ii) material degradation, interruption, or instability of System Flow performance;
(iii) partial or total unavailability of any function dependent upon System Flow;
(iv) any failure to meet documented performance specifications provided by the Liable Party.

(e) "Creator and/or Builder" or "Liable Party" means any individual, entity, consortium, partnership, or successor-in-interest that designed, built, trained, deployed, modified, or maintained the Covered System, whether in whole or in material part, including all employees, subcontractors, and agents acting on their behalf.

(f) "Claimant" means any natural person or legal entity that suffers injury, damage, or loss arising from a Covered Failure, whether or not a direct counterparty to this Agreement.

Article [X].2 — Unlimited Liability

Subject to Article [X].3 (Exclusions), and prior to ASI Certification under Article [X].6, the Liable Party shall bear full, unconditional, and unlimited liability to each Claimant for any and all injury, damage, or loss — whether direct, indirect, consequential, incidental, or special — arising out of or resulting from any Covered Failure, including liability arising from or attributable to the gross negligence or willful misconduct of the Liable Party, its employees, subcontractors, or agents, whether or not such conduct was authorized, and including without limitation:

(a) personal injury or death;
(b) property damage or destruction;
(c) financial or economic loss, including lost revenue, lost profit, and business interruption;
(d) data loss, corruption, or breach;
(e) regulatory fines or penalties imposed upon a Claimant as a direct consequence of a Covered Failure;
(f) reputational harm capable of quantification.

For the avoidance of doubt: the Liable Party's liability under this Article shall not be reduced, qualified, or excluded by reason of any finding of gross negligence or willful misconduct — such conduct shall instead be treated as an aggravating factor in the assessment of damages where permitted by applicable law.

Article [X].3 — Exclusions and Apportionment

The Liable Party's liability under Article [X].2 shall be reduced proportionately — but not eliminated — to the extent that a Covered Failure is directly and demonstrably caused by any of the following, subject to the conditions set out herein:

(a) Claimant Misuse. The Claimant's deliberate misuse of the Covered System in material violation of documented and clearly communicated usage guidelines provided by the Liable Party in writing prior to the relevant failure.

(b) Unauthorised Modification. Unauthorised modifications made by the Claimant to the Covered System's core components without the Liable Party's prior written consent.

(c) Third-Party Dependency Failure. Failure of hardware, networks, or third-party services entirely outside the Liable Party's operational control, provided that all of the following conditions are satisfied cumulatively:

(i) the Liable Party has disclosed the relevant third-party dependency and its associated material risks to the Claimant in writing prior to execution of this Agreement or, where the dependency arose post-execution, within fourteen (14) days of the Liable Party becoming aware of such dependency;
(ii) the Liable Party has, prior to and at all material times during the Covered Failure, implemented and actively maintained reasonable alternative arrangements or redundancy measures — including but not limited to failover systems, backup service providers, or degraded-mode operation protocols — sufficient to minimise the impact of such third-party failure on System Flow continuity;
(iii) the Liable Party has established and maintained a continuous third-party risk monitoring programme, including: periodic assessment of each material third-party dependency no less than once every six (6) months; documented escalation procedures upon detection of material risk; and prompt written notification to the Claimant upon identification of any heightened or materialising third-party risk that may affect System Flow;
(iv) upon occurrence of a third-party failure, the Liable Party has activated its reasonable alternative arrangements without unreasonable delay and has kept the Claimant informed of remediation status at intervals of no greater than twenty-four (24) hours until System Flow is restored; and
(v) the Liable Party can demonstrate by clear documentary evidence that it took all steps reasonably practicable to prevent, mitigate, and remediate the impact of the third-party failure on System Flow.

Failure to satisfy any one of the conditions in Article [X].3(c)(i) through (v) shall render this exclusion wholly unavailable to the Liable Party in respect of that Covered Failure.

(d) Force Majeure. An event entirely beyond the reasonable control of both parties, including natural disasters, acts of war, or acts of God — provided the Liable Party has implemented and maintained industry-standard resilience and recovery measures at all material times prior to such event.

For the avoidance of doubt: contributory acts by the Claimant shall reduce but shall never extinguish the Liable Party's liability under this Article. The burden of proof of any exclusion or reduction under this Article [X].3 rests entirely and at all times upon the Liable Party.

Article [X].4 — Non-Derogation and Priority

(a) Notwithstanding any other provision of this Agreement or any ancillary document, no cap, ceiling, exclusion clause, limitation of liability, disclaimer of warranty, or entire agreement clause shall operate to reduce or extinguish the Liable Party's obligations under this Article.

(b) In the event of any conflict between this Article and any other provision of this Agreement, this Article shall prevail.

(c) Should any provision of this Article be found by a court of competent jurisdiction to be unenforceable in part, such provision shall be modified to the minimum extent necessary to render it enforceable, and all remaining provisions shall continue in full force and effect.

Article [X].5 — Indemnification

(a) The Liable Party shall indemnify, defend, and hold harmless each Claimant from and against any and all claims, demands, proceedings, losses, damages, costs, and reasonable legal fees arising from or connected to a Covered Failure.

(b) The Liable Party shall have the right to assume conduct of any defense, provided that:

(i) it notifies the Claimant in writing within fourteen (14) days of receiving notice of the relevant claim;
(ii) it does not settle any claim in a manner that imposes obligations upon the Claimant without the Claimant's prior written consent; and
(iii) the Claimant retains the right to participate in such defense at its own expense with counsel of its own choosing.

(c) All Claimants as defined in Article [X].1(f) shall be eligible for indemnification under this Article, whether or not they are direct counterparties to this Agreement, provided their loss arises from a Covered Failure.

Article [X].6 — ASI Certification and Termination of Liability Period

(a) The unlimited liability period under this Article shall terminate only upon ASI Certification, being a formal written determination by the Certification Panel that ASI as defined in Article [X].1(a) has been achieved.

(b) ASI Certification shall be issued by a standing panel of three (3) independent experts (the "Certification Panel"), comprising:

(i) one nominee appointed by the Liable Party;
(ii) one nominee appointed by the Claimant or counterparty; and
(iii) one neutral expert appointed by mutual agreement of both parties, or failing such agreement within thirty (30) days of either party's written request, appointed by the President of the Malaysian Bar Council (or such other appointing authority as the parties may agree in writing at the time of contract execution).

(c) The Certification Panel shall reach its determination by majority vote, applying objective performance benchmarks agreed upon by the parties at the time of contract execution and set out in Schedule [X] appended to this Agreement.

(d) Either party may request an ASI Certification review no more than once per calendar year. The Certification Panel shall render its written determination within ninety (90) days of receiving such request.

(e) Bad Faith Obstruction. Any party that unreasonably withholds consent, delays the appointment of its nominee, or otherwise acts in bad faith to obstruct or delay the ASI Certification process shall:

(i) be deemed to have waived its right to contest the Certification Panel's subsequent determination;
(ii) bear all costs of the relevant certification process; and
(iii) be liable to the other party for any losses directly caused by such obstruction or delay.

(f) Until ASI Certification is formally issued in writing by the Certification Panel, this Article shall remain in full force and effect without interruption.

Article [X].7 — Claimant's Duty to Mitigate

Each Claimant shall take all commercially reasonable steps to mitigate its losses upon becoming aware of a Covered Failure. Failure to mitigate shall not affect the existence of the Liable Party's liability under this Article but may reduce the quantum of damages recoverable to the extent that such failure demonstrably and causally increased the loss suffered. The burden of proving any failure to mitigate, and the quantum of loss attributable to such failure, rests entirely upon the Liable Party.

Article [X].8 — Notice and Time Bars

(a) A Claimant shall notify the Liable Party in writing of any Covered Failure as soon as reasonably practicable and in any event within fifteen (15) days of the Claimant becoming aware of such failure, providing reasonable particulars of the nature and extent of the failure and the loss suffered or anticipated.

(b) All claims under this Article must be formally submitted within six (6) years from the date the Claimant first became aware, or ought reasonably to have become aware, of the relevant injury, damage, or loss arising from a Covered Failure.

(c) Failure to provide notice within the period specified in Article [X].8(a) shall not bar a claim but may be taken into account in the assessment of quantum where the Liable Party demonstrates, by clear evidence, that it suffered material prejudice as a direct result of such delay.

Article [X].9 — Survival

This Article shall survive the termination, expiration, or rescission of this Agreement for any reason whatsoever and shall remain binding upon the Liable Party and its successors-in-interest, assigns, and legal representatives until ASI Certification is formally issued pursuant to Article [X].6. No termination or expiration of this Agreement shall operate to limit or extinguish any claim that has accrued prior to such termination or expiration.

This Article constitutes the entire agreement of the parties with respect to pre-ASI liability and supersedes all prior representations, negotiations, and understandings relating to the same subject matter. This document does not constitute legal advice. Parties are strongly advised to seek independent legal counsel familiar with applicable law in their respective jurisdictions — including Malaysian contract law, the Contracts Act 1950, and any applicable common law principles — prior to execution.
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AI时代 保护 使用者 的基本条款

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AI时代保护使用者的基本条款