Terms and Conditions

1. Acceptance

YOU SHOULD READ THIS AGREEMENT CAREFULLY FOR THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SOFTWARE. BY ACCESSING AND/OR USING THE SOFTWARE, OR BY CHECKING OR CLICKING THE "AGREE", "I CONSENT" OR SIMILAR BUTTON OR BOX IF AND WHEN THIS OPTION IS PRESENTED TO YOU, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND (B) AGREE TO ACCEPT THIS AGREEMENT, AND (C) AGREE THAT YOU ARE LEGALLY BOUND BY (AND THAT YOU WILL ADHERE TO) ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ACCESSING AND USING THE SOFTWARE FOR YOUR OWN PERSONAL, NON-COMMERCIAL USE, THEN YOU REPRESENT AND WARRANT TO US THAT YOU ARE AT LEAST 18 YEARS OF AGE OR OTHERWISE OF THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE. IF YOU ARE A BUSINESS OR OTHER LEGAL ENTITY ACCESSING AND USING THE SOFTWARE FOR YOUR INTERNAL BUSINESS PURPOSES, THEN THE INDIVIDUAL REGISTERING TO USE THE SOFTWARE ON YOUR BEHALF ALSO REPRESENTS AND WARRANTS TO US THAT SUCH INDIVIDUAL IS FULLY AND DULY AUTHORIZED TO AGREE TO BE BOUND BY THIS AGREEMENT ON YOUR BEHALF. BY ACCESS AND USING THE SOFTWARE, OR BY CHECKING OR CLICKING THE "AGREE", "I CONSENT" OR SIMILAR BUTTON OR BOX IF AND WHEN THIS OPTION IS PRESENTED TO YOU, YOU REPRESENT AND WARRANT TO US THAT YOU MEET ALL OF THE FOREGOING ELIGIBILITY RERQUIREMENTS. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, THEN YOU MUST NOT ACCESS OR USE THE SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MUST NOT ACCESS OR USE THE SOFTWARE.

2. Changes to this Agreement

We may revise and update this Agreement from time to time in our sole discretion; provided, however, that, during the Term, we will not without your prior written consent make any revisions, updates or other changes to this Agreement that will in a manner that is materially adverse to you either (a) reduce our express obligations to you under this Agreement, or (b) alter our express representations, warranties, indemnities or limitations of liability. Via a conspicuous posting within the Software itself or via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. Changes to this Agreement are effective immediately when we post them, and your continued use of the Software following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the Software if you do not want to agree to the revised Agreement.

3. Software Right to Access and Restrictions

1. Software Authorization. We authorize you, during the Term, and on a non-exclusive and non-transferable (except as described in Section 13.e) basis, to access and use the Software, on a "software as a service" basis and through your Authorized Users only, in each case provided that such access and use is solely for the Permitted Use. This authorization also permits you to access and use the Documentation during the Term in support of your Permitted Use of the Software.
2. Limitations and Restrictions. You must not, and you must not permit any other person or entity to, access or use the Software except as we've specifically allowed in this Agreement. Without limiting the preceding sentence, you must not do any of the following:

   1. copy, modify, adapt, translate or create derivative works or improvements of the Software;
   2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software to any other person or entity for any reason, including by making the Software available through any time-sharing, service bureau or software as a service arrangement;
   3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software;
   4. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or that contain, transmit or activate any Harmful Code;
   5. bypass, breach or disable any security device, copy control, digital rights management tool or other protection used by the Software;
   6. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Software, (B) the server on which the Software is hosted and stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide our Software or services to any other person or entity;
   7. access or use the Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
   8. access or use the Software for purposes of (A) developing, marketing, distributing, licensing or selling any product or service that may compete with the Software, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software;
   9. share an Authorized User's access credentials with any person or permit use of an Authorized User's access credentials by any person, other than the Authorized User with whom the access credentials are associated;
   10. access or use the Software in a way to avoid incurring fees or exceeding usage limits or quotas or to render inoperative any usage restriction features contained in the Software; or
   11. knowingly aid or assist any other person or entity in taking any of the actions prohibited by this Section 3.b.
3. Responsibility for Authorized Users. You will ensure your own employees', contractors' and agents' (including, for the avoidance of doubt, all Authorized Users') compliance with this Agreement and be responsible and liable to us for any act or omission of any such employee, contractor or agent under your control or direction or acting on your behalf that would be a breach or violation of this Agreement had you performed the act or omission yourself.

4. Additional Terms Regarding the Software

1. Support Services. You understand, acknowledge and agree that, unless otherwise separately agreed by you and us in writing, the following terms apply with respect to any technical or customer support services relating to the Software: If you have a technical or customer support services request, you may contact us with your request using the designated support email address listed on our main corporate website or within the Software itself, and upon receipt of your request we will use good faith efforts to respond within a period of time that is reasonable under the circumstances. We do not otherwise provide, and the Software is not otherwise offered with, any technical or customer support services.
2. Changes to the Software. We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time in our discretion; provided that we will not during the Term make any changes to the Software that will materially adversely affect the features and functionality of the Software that you use. Such changes may include upgrades, bug fixes, patches, error corrections, modifications, enhancements, improvements and/or new features (collectively, "Updates"). All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto.
3. Subcontractors. You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software under this Agreement, but we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement. For example, we may use Amazon Web Services, Microsoft Azure, Google Cloud Platform and/or such other reputable provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies (the "Hosting Services Provider") for cloud-based infrastructure and hosting and storage services for the Software, and such Hosting Services Provider will host and process certain portions of Your Data that is processed through the Software. You hereby specifically approve and consent to our use of a Hosting Services Provider in the manner described. Notwithstanding anything to the contrary in this Agreement, you further agree that we cannot guarantee or ensure the performance of any Hosting Services Provider to the terms of this Agreement, and remediation of a breach by a Hosting Services Provider is limited to the remedies specified the Hosting Services Provider's standard service agreement.
4. Suspension of Software Access. We may suspend or deny your (and/or one or more of your employees', contractors' or agents') access to or use of all or any part of the Software, without any liability to you or others, if (i) we're required to do so by law or court order; or (ii) you have or any employee, contractor or agent under your control or direction or acting on your behalf has (A) accessed or used our Software in violation of this Agreement, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Software, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within 5 days after we provide written notice to you. Unless we have exercised our right to terminate this Agreement pursuant to Section 9.b, we will promptly restore access to the Software and resume performance of our Services as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 9.b or any other rights or remedies under this Agreement, at law or in equity.
5. Free Tier Access and Use. Notwithstanding anything to the contrary in this Agreement, if your Order indicates that you will be obtaining a subscription to the Software under a free subscription tier or plan or otherwise without payment of subscription Fees for the Software (a "Free Tier Order"), then you acknowledge and agree that UNDER ANY FREE TIER ORDER ALL SERVICES AND ZATOMIC IP (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT ANY SUPPORT SERVICES OR ANY WARRANTY OR INDEMNITY OF ANY KIND FROM US, EXPRESS OR IMPLIED, AND THE AGGREGATE LIABILITY OF ZATOMIC UNDER OR IN CONNECTION WITH ANY FREE TIER ORDERS SHALL NOT EXCEED $100 UNDER ANY CIRCUMSTANCES. Either party may cancel a Free Tier Order at any time immediately upon notice to the other party (which in this instance may be given by email or by selecting the "Cancel My Subscription" or similarly-worded option in your account settings on the Software), for any reason or for no reason, and upon such termination your right to access and use the Software will terminate and you must immediately cease accessing and using the Software.

5. Confidentiality

1. General. In connection with receiving or providing the Software during the Term, each party (each, a "Discloser") may disclose to the other party (the "Recipient") the Discloser's proprietary or confidential information (collectively, "Confidential Information"). During the Term and thereafter the Recipient will not without the Discloser's written consent disclose Discloser's Confidential Information to any third party (other than our subcontractors as permitted in Section 4.c above) nor use the Discloser's Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. All non-public information related to our Software and the features, functionality and performance thereof are all our Confidential Information, Your Data (including, for the avoidance of doubt, any of Your Data that consists of Personal Information (as defined below) of your employees or other personnel) is your Confidential Information, and the terms of this Agreement and your Order are the Confidential Information of both of us.
2. Exceptions. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees, contractors or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, Recipient may disclose Discloser's Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.

6. Data Privacy

1. In General. We will store, use and otherwise process any of Your Data that constitutes "personal information", "personal data" or "personally identifiable information" as defined in applicable laws (collectively "Personal Information") in all material respects in accordance with all applicable laws relating to the privacy and protection of Personal Information ("Data Privacy Laws"), including but not limited to the California Consumer Privacy Act of 2018 and its implementing regulations (as amended, restated or supplemented from time to time, "CCPA"). We will not access, use, handle, maintain, process, dispose of, or disclose Personal Information other than as permitted or required under this Agreement or Data Privacy Laws. We will limit dissemination of Personal Information to our employees and subcontractors who (i) need to know the information to enable us to perform our obligations or exercise our rights under this Agreement, and (ii) are bound by confidentiality obligations substantially equivalent to those provided for in this Agreement. We will cooperate with you as may be reasonably required to enable you to comply with Data Privacy Laws, including by reasonably assisting you in complying with individuals' rights in regards to their Personal Information under Data Privacy Laws. In furtherance of the foregoing, based on the data that you will process using the Software or otherwise provide to us, if and to the extent Data Privacy Laws require additional clauses to be executed by us beyond those set forth in this Agreement, then you must notify us in writing of such requirement and we will in good faith review, negotiate and consider adding such clauses as an addendum to this Agreement. In the absence of such notice you represent and warrant that no additional clauses are required.
2. No Sensitive Data. You understand and accept that the Software and our other systems and networks are not designed or intended for the storage, processing or protection of Sensitive Data and may not provide adequate or legally-required security or other protections for Sensitive Data. Therefore, notwithstanding anything to the contrary in this Agreement, we will have no responsibility or liability for or in any way related to any Sensitive Data that you, your employees, contractors or agents may voluntarily choose to input into the Software or otherwise provide to us in connection with our performance under this Agreement. For the purposes of this Agreement, "Sensitive Data" means the following: "protected heath information" within the meaning of the Health Insurance Portability and Accountability Act or any other information concerning an individual's health; credit card, debit card or other payment card information; financial account information of any kind; identity numbers issued by any government agency such as driver's license number, Social Security number or passport number; an individual's precise geolocation; an individual's racial or ethnic origin, religious or philosophical beliefs, or union membership; information concerning an individual's sex life or sexual orientation; the contents of any individual's mail, email or text messages except where we are the intended recipient of the communication; criminal history or the results of background checks or drug screenings; passwords or other access credentials that would or could be used to access any personal accounts (other than passwords and/or access credentials used by Authorized Users to log in to and access the Software which shall not be excluded as a result of this provision); biometric information or genetic data; Personal Information of or about any individual under the age of 16; or any other forms of Personal Information that are included in any definition of "sensitive personal information", "sensitive data", "special categories of personal data" or similar terms or concepts as used in Data Privacy Laws.

7. Fees and Payment; Tokens.

1. Fees. Unless otherwise specified in your Order, you will pay to us the fees and charges listed on our standard pricing page online (the "Fees"), in accordance with this Section 7. In addition, all Software subscription Fees may, in our discretion, be increased if we notify you of the pending Fee increase at least 30 days prior to the Fee increase taking effect. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in your Order) all Fees once paid are non-refundable.
2. Payment Terms. You will make all payments in US dollars, using the payment method and in accordance with the payment schedule set forth on your Order. Unless otherwise stated in your Order: (i) we will charge (and you will pay) our Fees on a monthly basis, in advance, and (ii) you must provide us with a current and valid method of payment for recurring Fees that is accepted by us such as a credit card or debit card (as such may be updated by you from time to time, "Payment Method"). By providing your Payment Method information to us you hereby authorize us to charge you the Fees (including all recurring Fees) as set forth in your Order using the specified Payment Method. You are responsible for providing complete and accurate billing information and notifying us of any changes to that information.
3. Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill, and once collected from you we will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
4. Tokens.

   1. In General. As specified in your Order, your subscription to the Software includes a certain specified number of tokens provided to you by us each month for use in processing requests sent to or through our Software. You may not submit requests to our Software (and we will not be obligated to process via the Software any of your requests) that would consume tokens in excess of this allotted number of tokens provided to you each month. Unused tokens do not carry forward into future months. If and to the extent you have provided to us the applicable API keys, you may configure your account on the Software to connect to and process Your Data through an eligible AI provider of your choice under your own account with such AI provider (as opposed to Zatomic's AI provider under Zatomic's own account with such AI provider) ("Your AI Provider"); doing so (i) will consume your own tokens with Your AI Provider and may result in additional charges to you by Your AI Provider, and (ii) will result in not consuming the Zatomic-provided tokens (which will remain available for you to use each month). If you provide to us the aforementioned API keys for this purpose, we warrant that we will not use such API keys for any purpose other than linking your Software account with Your AI Provider for use with the Software. Zatomic reserves the right to determine, maintain and update over time a list of eligible AI providers that users are authorized to link to the Software as Your AI Provider—in Zatomic's sole and absolute discretion and with or without prior notice to you. There is no limit to the number of your own tokens with Your AI Provider that you may consume in connection with your use of the Software; however, linking your account with Your AI Provider in this manner (and consuming your own tokens with Your AI Provider as opposed to those made available to you each month by Zatomic) will not result in a reduction of the Fees specified in your Order.
   2. Your Responsibility; Disclaimer. As between you and us, you will be solely responsible for obtaining (at your sole cost and expense) the appropriate licenses to and accounts on Your AI Provider that are necessary to enable such integrations using such application programming interfaces or other similar connectors as may be made available by Your AI Provider. As between you and us, you will be responsible for verifying whether (and you hereby represent and warrant to us that) the establishment and on-going operation of any integrations between the Software and Your AI Provider as contemplated by this Agreement are and will be in compliance with the terms and conditions of the applicable license agreements for Your AI Provider and in compliance with applicable laws, rules and regulations. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY SUCH INTEGRATIONS ARE PROVIDED TO YOU BY ZATOMIC "AS IS", "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. Notwithstanding anything to the contrary in this Agreement, Zatomic does not make any, and Zatomic hereby disclaims any and all, representations or warranties with respect to Your AI Provider, including (but not limited to) any representations or warranties as to the quality, accuracy, availability, operation or performance of Your AI Provider or as to the capabilities, features or functionality, suitability, legality or appropriateness of Your AI Provider for use in your business or for use in connection with the Software, and you acknowledge and agree that we will not be liable to you or any other person or entity for losses, damages, costs or expenses of any kind or nature to the extent resulting from any failure, interruption, delay, error, breach (including breach of security) or other problem of or caused by Your AI Provider.

8. Ownership and IP

1. Zatomic IP. As between you and us, we are and will remain the sole and exclusive owner of all right, title and interest in and to the Software and Documentation (for the avoidance of doubt excluding any of Your Data or Confidential Information), including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, Updates, configurations, revisions, derivative works, improvements and modifications of any of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in any of the foregoing and all related intellectual property rights (collectively, the "Zatomic IP"). We are not granting you any right, license or authorization with respect to the Zatomic IP except as we've specifically provided in Section 3 above. For the avoidance of doubt, nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software. We reserve all other rights in and to the Zatomic IP.
2. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 8.b. You grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary or useful to provide the Software and enforce this Agreement and exercise our rights and perform our obligations under this Agreement. We will not sell or commercialize Your Data (in aggregated or anonymized form or otherwise), we will not use Your Data to train machine learning or large language models, and we will not otherwise use Your Data for any purpose except as set forth in this Section 8.b.
3. Usage Data. We may collect diagnostic, metadata, telemetry, technical and other statistical information regarding your and your employees', contractors' and agents' use of and the performance of the Software ("Usage Data"), such as data on what features and functions are being used by its users and to what extent and information about users' computers, systems and software used to access the Software. We may use Usage Data for monitoring, enhancing and improving the Software. Usage Data is not and will not be deemed to be Your Data under this Agreement.
4. Feedback. You may provide us with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Software ("Feedback"). You acknowledge and agree that: (i) you shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; (ii) we may have development ideas similar to the Feedback; and (iii) Zatomic is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, you grant Zatomic and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.

9. Term and Termination

1. Term. The term of this Agreement and your right to access and use the Software (the "Term") commences on the date you accept this Agreement in accordance with Section 1 above and, unless otherwise agreed by you and us in your Order, continues on a month-to-month basis until it is terminated in accordance with this Agreement. Either party may cancel the automatic monthly renewal of the Term at any time upon notice to the other (which in this instance may be given by email or by selecting the "Cancel My Subscription" or similarly-worded option in your account settings on the Software) given at any time prior to the end of the then-current monthly subscription period (and if such notice of cancellation is given in accordance with this Section, then the Term shall continue until the end of the then-current monthly subscription period and then terminate); provided, however, that if we elect to cancel in accordance with this sentence we will provide you with at least 30 days' prior written notice.
2. Termination. Either party may terminate this Agreement at any time, immediately upon written notice to the other, if the other party materially breaches this Agreement and such breach (i) remains uncured 5 days after the non-breaching party provides the breaching party with written notice regarding such breach, or (ii) is the second (or higher ordinal) breach of the limitations and restrictions in Section 3.b.
3. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your, your employees', contractors' and agents' access to the Software, and (iii) we each will cease all use of the other party's Confidential Information and (upon written request) promptly destroy or return all of the other party's Confidential Information, except that Zatomic may retain copies of your Confidential Information (including Your Data) as required by applicable laws and Zatomic may retain copies of your Confidential Information (including Your Data) stored in electronic archived or backup systems until such copies are deleted in the ordinary course in accordance with Zatomic's data retention policies, provided that in either case any such retained copies shall remain protected to the standards of this Agreement for so long as they are retained.
4. Surviving Terms. This Section 9.d and Sections 5 (Confidentiality), 6 (Data Privacy), 8 (Ownership and IP), 9.c (Effect of Termination), 10.b (Disclaimer of Warranties), 11 (Indemnification), 12 (Limitations of Liability), 13 (Miscellaneous) and 14 (Definitions) will survive any expiration or termination of this Agreement.

10. Representations and Warranties

1. By You Regarding Your Data. You represent and warrant that: (i) your and your employees', contractors' and agents' collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software as contemplated in this Agreement) and your Confidential Information is consistent with your own privacy policy and your license agreements and other agreements with third parties; (ii) you either own, or have all rights, permissions and consents that are necessary to permit us, our subcontractors and the Software to store, use and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (iii) our and our subcontractors' access to and storage, use and other processing of Your Data and your Confidential Information (including all Personal Information included in Your Data and your Confidential Information) in accordance with this Agreement does not and will not violate any applicable law, rule or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any person or entity.
2. Disclaimer of Warranties. ALL SERVICES (INCLUDING BUT NOT LIMITED TO SUPPORT SERVICES) AND ZATOMIC IP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

11. Indemnification

You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you, your Authorized User or any of your other employees, contractors or agents have breached or violated any representations, warranties, limitations, restrictions, covenants or other obligations in this Agreement.

12. Limitation of Liability

IN NO EVENT WILL WE BE LIABLE TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND OR NATURE (INCLUDING, FOR THE AVOIDANCE OF DOUBT, DIRECT DAMAGES) IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13. Miscellaneous

1. Entire Agreement. This Agreement, together with your Order, is the entire agreement between the parties on the subject matter hereof, and supersedes all prior negotiations, understandings or agreements (oral or written) and all past dealing or industry custom. We are not and will not be bound by (and we hereby expressly reject throughout the Term) any of the terms and conditions of (or that may be incorporated by reference in) any other purchase order, receipt, acceptance, confirmation or other correspondence provided by you.
2. Amendment, Severability and Waiver. Except as expressly set forth in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions.
4. Notices. All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address we have on file for you or provided to you on our website.
5. Assignment. Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party's consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
6. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7. Relationship of the Parties. The relationship between the parties is that of independent contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
8. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party’s reasonable control (each, a "Force Majeure Event"). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either party may terminate this Agreement if a Force Majeure Event affecting the other arty continues substantially uninterrupted for a period of 30 days or more.
9. Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3.b (Limitations and Restrictions) or Section 5 (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10. Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials in order to factually identify you as a current customer.
11. Conflict in Terms. If there is a conflict between this Agreement and your Order, the terms of the Order shall govern the provision of the Software and/or any services involved; provided, however, that nothing in your Order may modify or supersede anything in Sections 3.b (Limitations and Restrictions), 8 (Ownership and IP), 10 (Representations and Warranties), 11 (Indemnification) or 12 (Limitation of Liability) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order and the parties have expressly agreed in the Order to modify or alter the relevant provision of this Agreement.

14. Other Definitions

Capitalized terms that are used as defined terms in this Agreement have the meanings described below:

"Authorized User" means your employees, independent contractors, consultants, agents, subcontractors, vendors or other service providers who access and use the Software by and through your account, in each case so long as such access and use is in furtherance of (or in order to support) the Permitted Use of the Software under this Agreement.

"Claim" means any investigation by a governmental body, claim, suit, action or proceeding.

"Documentation" means the then-current online, electronic and written user documentation and guides we make available to you and your Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.

"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.

"Loss" means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.

"Order" means the order form, order purchase confirmation page, check-out page, or similar ordering webpage, landing page or written document presented and offered to you by us and confirmed or otherwise accepted by you, in each case that references this Agreement as part of the confirmation or acceptance process. An Order may specify applicable pricing and fees, a limit to the number of authorized users who may use the Software, a limit to the number of workspaces you may maintain on the Software, a limit to the number of tokens provided by us for your use, certain other volume or usage limitations, how long you are authorized to use the Software, and other terms.

"Permitted Use" means (a) if you are an individual entering into this Agreement in your own individual capacity, for your own personal, non-commercial purposes, or (b) if you are a business or legal entity, for your own internal business purposes.

"Your Data" means information, data, records or other materials that are submitted to or uploaded directly by you or your Authorized Users by or through the Software for the purposes of being processed using the Software.