Terms of Service

This Decagon Master Services Agreement (the “Agreement”) is made and entered into on [__________] (the “Effective Date”) by and between Decagon AI, Inc. a Delaware Corporation (“Decagon”) and [______________], a [______________] (“Customer”).

In consideration of the mutual promises contained herein, the parties hereby agree to the following:
 

1. Background. Decagon has developed the Decagon platform, which it provides as part of its Services (as defined below).  Customer wishes to utilize the Services, and Decagon desires to make the Services available to Customer, subject to the following terms and conditions.
2. Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
   • “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
   • “Aggregated Data” means data and information related to Customer Content and/or Customer’s use of the Services that is used by Decagon in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
   • “Applicable Privacy Laws” means data protection and privacy laws and regulations applicable to the Services, including, but not limited to, where applicable, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation (“GDPR”), and the e-Privacy Directive (Directive 2002/58/EC).
   • “Authorized User” means any individual who is an employee or independent contractor of Customer, or such other individual, as may be authorized by the Customer to access the Services pursuant to Customer’s rights under this Agreement.
   • “Customer Content” means, other than Aggregated Data, (a) information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the use of the Platform or Services, and (b) content that is created by or on behalf of Customer or Authorized Users through the Platform or Services.
   • “Documentation” means Decagon-provided user documentation, in all forms, relating to the Services and Platform in hard copy or electronic form (e.g. user manuals and online help files).
   • “Error” means a reproducible failure of the Platform to substantially conform to the Documentation.
   • “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
   • “Order” or “Order Form” means an ordering document that is signed by both parties identifying the services to be made available by Decagon pursuant to this Agreement. The initial Order is set forth on Exhibit A.
   • “Order Term” means the term length specified in the applicable Order Form.
   • “Personal Data” has the meaning given in the Applicable Privacy Laws.
   • “Platform” means Decagon’s cloud-hosted customer success platform. “Platform” includes all new versions updates, revisions, improvements and any associated user interfaces and related technology that Decagon makes available pursuant to this Agreement.
   • “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
   • “Services” means Decagon’s provision of: (a) the Platform; and (b) any other services set forth in the applicable Order Form.
3. PROVISION OF SERVICES.
   • Order Forms. Each Order Form is governed by, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.
   • License to Platform. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Decagon grants to Customer a non-exclusive, non-transferable license during the term, solely for use by Authorized Users in accordance with the terms and conditions herein, (a) to access and use the features and functions of the Platform as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services. Such use is limited to Customer’s internal business use.
   • Platform and Content Hosting. Decagon shall, at its own expense, provide for the hosting of the Platform which is accessible as part of the Services, provided that nothing herein shall be construed to require Decagon to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
   • Support Services. Subject to the terms and conditions of this Agreement, Decagon shall use commercially reasonable efforts to make the Services available in accordance with its then-current standard support (“Support Services”).
   • Personal Data. Before providing to Decagon or enabling Decagon to Process any Personal Data, Customer will enter into a Data Processing Addendum (“DPA”) with Decagon. If Customer has not entered into a DPA, Customer represents, warrants and covenants that no Personal Data Processed by Decagon under this Agreement is subject to Applicable Privacy Laws. Any Personal Data that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
   • Artificial Intelligence Tools. Subject to this Agreement, Decagon makes available to Customer certain artificial intelligence tools in connection with Customer’s use of the Platform (collectively, the “Decagon Tools”). Except where expressly specified otherwise in this Agreement, the Decagon Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the Decagon Tools. The Decagon Tools leverage third party large language models and artificial intelligence algorithms and platforms (“Third-Party Services”) to generate suggested text, information, results, images, and other materials (collectively, the “Output”) in response to the Customer’s prompts (“Prompts”). Decagon does not make any representations with respect to Third-Party Services or any Output provided in connection therewith. Such Third-Party Services are not under the control of Decagon and do not form part of the Platform. Decagon is not responsible for any Third-Party Services or Output generated thereby and Customer uses such Third-Party Services and Output at its own risk. As between the parties, each of the Prompts and Output are considered Customer Content for the purposes of the Agreement, provided that such Prompts may be provided to Third-Party Services in order for Customer to access the Decagon Tools, but are expressly prohibited from training their algorithmic models.
4. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES.
   • Restrictions. Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Platform or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Platform or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (e) use or copy the Platform or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Platform to any individual other than an Authorized User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Platform is permitted to the extent the laws of Customer’s jurisdiction require Decagon to give Customer the right to do so to obtain information necessary to render the Platform interoperable with other software; provided, however, that Customer must first request such information from Decagon and Decagon may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Platform to ensure that Decagon’s and its suppliers’ proprietary rights in the source code for the Platform are protected. Customer acknowledges and agrees that the Services, Platform, and Documentation will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Platform, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Platform
   • Setup Responsibilities. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, mobile devices, software, services and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. In the event that Decagon assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
   • Authorized Users Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Decagon promptly of any such unauthorized use known to Customer.
   • Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Services. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. In the ordinary course of its business, Decagon performs back-ups of Customer Content; however, Decagon is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Content.
   • Customer shall always comply with all international and domestic laws, ordinances, regulations, mobile carrier policies, industry rules, and statutes that are applicable to its purchase and use of the Platform, Documentation, or Services hereunder, including but not limited to telemarketing laws.
   • Responsible Use of Decagon Tools. Customer shall comply with all obligations and commitments in the Agreement in connection with Customer’s use of the Decagon Tools. Customer is solely responsible for the Prompts, its Outputs and its use thereof. Without limiting the disclaimers in Section 7 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer’s representations and warranties under the Agreement, Customer shall not use any Prompts or Output that, to Customer’s knowledge: (a) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Platform; (d) contains any Personal Data, such as financial, medical or other sensitive Personal Data such as government IDs, passport numbers or social security numbers; or (e) violates the Third-Party Terms. Decagon reserves the right to suspend or terminate Customer’s access to the Decagon Tools for any failure by Customer or an Authorized User to comply with this Section. In addition to the foregoing, Customer’s obligations under the Agreement with respect to use of the Services, its representations and warranties and indemnification obligations, shall apply in full with respect to Customer’s use of the Decagon Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the Decagon Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
5. • Decagon Intellectual Property. The Services, Platform, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Decagon and its suppliers. All rights in and to the Services, Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Decagon and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Platform.
   • Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for Decagon to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Decagon to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement.  Customer grants Decagon a non-exclusive, worldwide, royalty-free and fully paid license during the Order Term to use the Customer Content as necessary for purposes of providing and/or improving the Services. The Customer Content hosted by Decagon as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Decagon in this Agreement are reserved by Customer.
   • Third-Party Provider Policies. The Platform may include access to services provided by OpenAI, in which event Customer may not use the Platform in a manner that violates OpenAI’s Sharing and Publication Policy (located at https://openai.com/policies/sharing-publication-policy/) or OpenAI’s Usage Policies (located at https://openai.com/policies/usage-policies/).
   • Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Decagon may monitor Customer’s use of the Services and collect and compile Aggregated Data. As between Decagon and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Decagon. Customer acknowledges that Decagon may compile Aggregated Data based on Customer Content and may use all Aggregated Data to improve its machine learning model and artificial intelligence algorithms (collectively, “Models”). All right, title, and interest in and to the Models are retained by Decagon. Customer agrees that Decagon may (a) make Aggregated Data publicly available in compliance with applicable law, and (b) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer’s Confidential Information.
   • If Customer or any of its employees or contractors sends or transmits any communications or materials to Decagon by mail, email, telephone, or otherwise, suggesting or recommending changes to Decagon’s intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Decagon is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Decagon on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Decagon is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Decagon is not required to use any Feedback.
6. fees and expenses; payments.
   • Fees and Expenses. Customer shall pay to Decagon, without offset or deduction, the fees and expenses as determined under any Orders and this Agreement. Decagon reserves the right to increase the fees under each Order following the Initial Order Term, and each Renewal Order Term thereafter, but must provide notification of such increases at least thirty (30) days prior to the end of the Initial Order Term or then-current Renewal Order Term. All such fees shall be due and payable within thirty (30) days after an invoice is issued by Decagon.
   • Taxes. The fees and other amounts payable by Customer to Decagon do not include any taxes of any jurisdiction that may be assessed or imposed upon the Proprietary Items, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Decagon’s net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse Decagon for any taxes payable or collectable by Decagon (other than taxes based upon Decagon’s net income). If Customer has provided Decagon with proof of its tax exempt status, then, in the event that Customer’s tax exempt status should become altered, Customer shall be obligated to notify Decagon immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify Decagon of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against Decagon or Customer as a result of such Customer failure.
   • Payment Terms. Decagon may accept and process payment (including renewals) from Customer by wire transfer, or check, as mutually agreed on the applicable Order. If any Customer payment is more than thirty (30) days past due, interest at the rate of one percent (1%) per month (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars.
   • Suspension. In the event that Customer’s account is more than thirty (30) days overdue on any payment for any reason, Decagon shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Proprietary Items, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
7. Warranties and Disclaimers.
   • Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (c) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
   • Limited Warranty. Decagon represents and warrants to Customer during the Order Term the Platform will operate free from Errors. Decagon’s sole liability and Customer’s sole remedy in the event of a breach of the foregoing warranty is the provision of support in accordance with Section 3.4. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. THE FOREGOING WARRANTY DOES NOT APPLY, AND DECAGON STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES.
   • • EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, DECAGON MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PLATFORM, DOCUMENTATION, AGGREGATED DATA, SERVICES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PLATFORM, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS.” DECAGON DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, OR SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
     • Decagon Tools. THE DECAGON TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE MEDICAL, LEGAL, ACCOUNTING, OR OTHER ADVICE OF A CERTIFIED OR QUALIFIED PROFESSIONAL AND DECAGON MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. DECAGON DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE DECAGON TOOLS LEVERAGE THIRD-PARTY SERVICES AND THAT DECAGON IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD DECAGON LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE DECAGON TOOLS AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.
   • Customer Warranty. Customer represents and warrants to Decagon that: (a) Customer owns the Customer Content, or has the necessary licenses, rights, consents, and permissions to authorize Decagon to use the Customer Content in accordance with this Agreement; (b) Customer Content and the use of Customer Content as contemplated by this Agreement does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) violate, or cause Decagon to violate, any law or regulation; (iv) be deceptive, obscene, pornographic or unlawful; or (v) contain any viruses, worms or other malicious computer programming codes intended to damage Decagon’s system or data; and (c) Customer will use the Service and Platform in compliance with the Documentation. Decagon may monitor Customer’s use of the Service and may prohibit any use of the Services or Platform it believes may be in violation of the foregoing warranties or applicable law.
8. Limitation of Liability.
   • Exclusion of Damages. except with respect to breaches of confidentiality, breaches of applicable law, misappropriation of the other party’s intellectual property, and indemnification obligations, neither party shall be liable to the other party for any SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE arising out of this agreement, INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH this agreement, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF such party HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. Some states and jurisdictions do not allow the exclusion or limitation of incidental or consequential damages. This Section will apply solely to the extent permitted by applicable law.
   • Amount of Damages. except with respect to LIABILITY ARISING FROM breaches of confidentiality obligations under section 9, a party’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR a party’s indemnification obligations, THE MAXIMUM LIABILITY OF either party ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID or payable BY CUSTOMER TO Decagon DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
   • Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. • Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Decagon.
   • Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees or subcontractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Decagon).  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 
   • Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10. • By Decagon. Decagon will indemnify and hold harmless, at its own expense, Customer and its affiliates, employees, directors, and agents from and against any and all threatened third-party claim, proceeding, or suit (each, a “Claim”), and pay all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees), arising out of or relating to infringement by the Documentation or Services of a third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Documentation or Services becomes, or in Decagon’s opinion is likely to become, the subject of a claim of infringement, Decagon may, at Decagon’s option: (a) procure for Customer the right to continue using the Documentation or Services; (b) replace the Documentation or Services with non-infringing software or services which do not materially impair the functionality of the Documentation or Services; (c) modify the Documentation or Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Documentation or Services. Notwithstanding the foregoing, Decagon will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Documentation or Services in combination with other products, equipment, software or data not supplied by Decagon; or (iii) any modification of the Documentation or Services by any person other than Decagon or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of Decagon, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    • By Customer. Customer will indemnify and hold harmless, at its own expense, Decagon and its affiliates, employees, directors, and agents from and against any and all Claims, and pay all liabilities, losses, damages costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to (a) Customer’s breach or alleged breach of the section titled Customer Restrictions and Responsibilities, or (b) Customer’s use of the Prompts and/or Outputs.
    • The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnifying party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnified party shall not agree to settle any such claim without the indemnifying party’s express prior written consent. The indemnified party may participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense of the Claim.
11. Term And Termination.
    • This term of this Agreement will commence on the Effective Date and will continue in full force and effect, unless earlier terminated in accordance with the Agreement. Unless otherwise stated in the applicable Order Form, the Order Term will continue in full force and effect for one (1) year (“Initial Order Term”), unless earlier terminated in accordance with the Agreement.  Thereafter, the Order Form will automatically renew for additional terms of one (1) year (each, a “Renewal Order Term”), unless either party gives written notice of non-renewal to the other party no later than ninety (90) days prior to the expiration of the then-current Initial Order Term or Renewal Order Term.
    • Termination if No Outstanding Orders. If there are no outstanding Order Forms, either party may terminate this Agreement for any reason upon 30 days’ prior written notice to the other. Neither party may terminate an Order once it has been executed, other than by mutual consent or termination of this Agreement for material breach as set forth below.
    • Termination for Breach. Either party may terminate this Agreement or any Order immediately upon notice to the other party if the other party materially breaches this Agreement or the applicable Order, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 
    • Effect of Termination. Expiration or termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the expiration or termination of this Agreement or an Order all rights and licenses granted by Decagon to Customer under this Agreement or the applicable Order will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
    • Post-Termination Obligations. Unless Customer terminates this Agreement for material breach, if this Agreement expires or is terminated: (a) Decagon will not refund Customer any Fees paid in advance of such expiration or termination, including pre-paid Fees; and (b) within ten days after such expiration or termination, Customer shall pay Decagon all remaining Fees set forth under any terminated Order Forms so that Decagon is paid the full annual amount agreed to at the commencement of such Order Term (as if the Order Term had run its full course). The sections and subsections titled Definitions, Customer Restrictions and Responsibilities, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, Post-Termination Obligations and Miscellaneous will survive expiration or termination of this Agreement for any reason.
12. • Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to personal jurisdiction and venue in the federal courts of the United States or the courts of the State of California, in each case located in the city of San Mateo County, California, for any lawsuit filed arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
    • Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Decagon, or any products utilizing such data, in violation of the United States export laws or regulations. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
    • If any provision of this Agreement or a portion of a provision is held to be invalid, illegal, or unenforceable, the rest of this Agreement will remain enforceable.
    • Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • Except as provided in the subsection and section titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services, Platform, and Documentation contain valuable trade secrets and proprietary information of Decagon, that any actual or threatened breach of the sections titled Ownership or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of Decagon will constitute immediate, irreparable harm to Decagon for which monetary damages would be an inadequate remedy.  In such case, Decagon will be entitled to immediate injunctive relief or other equitable relief without the requirement of posting bond, including an order that any Platform, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
    • No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Decagon, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.
    • Publicity. Decagon may publicly list Customer as a customer of Decagon and, subject to Customer’s brand guidelines, use Customer’s trademark, trade name, and logo solely for marketing or promotional purposes.
    • Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, quarantine, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    • Relationship of the Parties. Customer’s relationship to Decagon is that of an independent contractor, and neither party is an agent or partner of the other. A party will not have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
    • Notices. All notices required or permitted under this agreement must be delivered in writing, if to Decagon, by emailing legal@decagon.ai, and if to Customer, by emailing [______], provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the signature page of this Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
    • This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. A signed copy of this Agreement delivered by email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
    • Entire Agreement. This Agreement (including the DPA and any Order Forms) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Decagon.