TERMS OF SERVICE

These Terms of Service (this “Agreement”) govern the access and use of the Decoder Service as specified in the Order Form and further defined in Section 1 below. This Agreement is a legally binding contract entered into between Decoded Consulting, LLC., a Delaware corporation (“Decoder”) and the customer as specified in the Order Form (the “Customer”).

1. DEFINITIONS

“AI Features” means the generative artificial intelligence (AI), large language models (LLMs), and/or machine learning (ML) functionality or features available through the Platform.

“Authorized Users” means Customer’s employees, contractors, representatives, and/or agents, each who are authorized by Customer to use the Decoder Service, including, Administrators (as defined in Section 4.3).

“Beta Features” means any beta versions, beta features, and/or functionality of the Platform, which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description, and made available by Decoder to Customer hereunder.

“Decoder Materials” means any templates, materials or content made available by Decoder through the Platform to generate AI automations or virtual AI assistants through the Platform.

“Decoder Service” means, as applicable, the operation of and provision of access to the Platform, Decoder Materials, Beta Features, Documentation, Support, and/or Implementation Services that are made available or provided by Decoder to Customer under this Agreement on a subscription basis.

“Customer Materials” means any and all data, text, images, information, documents, content, and/or other materials that are (a) uploaded, submitted, and/or transmitted through or in connection with the use of the Platform by Customer and/or any Authorized Users, or (b) otherwise provided or made available to Decoder by Customer and/or any Authorized User in connection with the use of the Decoder Service. Customer Materials expressly exclude Decoder Materials.

“Documentation” means Decoder’s then-current technical and functional documentation for the Platform made available to Customer hereunder.

“Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.

“Platform” means Decoder’s proprietary business automation and management hosted software platform as specified in the Order Form, and any and all modified, updated, or enhanced versions thereof, made available by Decoder to Customer on a remote online basis pursuant to this Agreement.

“Subscription Term” means the term of Customer’s subscription license to access the Decoder Service as specified in the applicable Order Form, and any renewal(s) thereof pursuant to Section 8.1.

“Usage Parameters” means the maximum number of permitted users and/or seats for the use of the Decoder Service specified on the applicable Order Form(s), and any other parameters applicable to the subscription plan purchased by Customer, or otherwise specified in the Order Form or in writing by Decoder regarding the scope of use of the Decoder Service by Customer and/or its Authorized Users.

2. ACCESS AND USE OF THE DECODER SERVICE

2.1. Subscriptions. Subject to the terms and conditions of this Agreement, the Decoder Service is provided on a subscription basis for the subscription term specified in the Order Form (“Subscription Term”).

2.2. Right to Access the Platform. Subject to the terms and conditions of this Agreement (including, payment of applicable fees), Decoder grants to Customer a personal, non-exclusive, non-sublicensable, non-transferable limited right, during the Subscription Term, to access and use, and permit its Authorized Users to access and use, the Platform, over the internet, solely for Customer’s own business purposes, in accordance with this Agreement and the Documentation, and subject to any applicable Usage Parameters.

2.3. Trials. Notwithstanding Section 2.2 above, if Customer obtains access to the Decoder Service on a trial basis, as set forth in the applicable Order Form, subject to the terms of this Agreement, Decoder will make the Decoder Service available to for the trial period specified in the Order Form (the “Trial Period”), and Customer’s use of the Decoder Service shall be solely for Customer’s own internal evaluation purposes, and subject to any applicable Usage Parameters or other trial terms and conditions specified in the Order Form. Unless otherwise set forth on the applicable Order Form, Customer acknowledges and agrees that if Customer has not purchased a paid subscription prior to the expiration of the Trial Period, this Agreement will automatically terminate (without the requirement of providing any termination notice) and Customer’s access to the Decoder Service will be terminated.

2.4. AI Features. The Platform enables the use of certain AI Features, which may be developed and owned by Decoder or third parties. For example, the Platform integrates AI Features developed by OpenAI, L.L.C (“OpenAI”) and/or Anthropic, PBC (“Anthropic”) and/or Google LLC (“Google”) via the APIs provided by OpenAI, Anthropic and Google. Customer acknowledges that it agrees to and shall use the AI Features in accordance with the authorized use of the Platform as set forth in this Agreement, and the use policies and terms available at https://www.decoder.technology/ai-features (collectively, the “AI Policies”). Decoder shall not, and shall not permit any third party to, use any Customer Materials processed using the AI Features to train machine learning models or for any reason other than as necessary to provide Customer the AI Features as part of the Platform, as required by law or as necessary to enforce any AI Policies.

2.5. Beta Features. If Customer elects to access Beta Features, Decoder grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Features solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Features and/or other applicable Usage Parameters for the Beta Features. In addition to the restrictions set forth in Section 2.7 below, Customer shall not access and/or use any Beta Features without the express prior written approval of Decoder if Customer is a direct competitor of Decoder. BETA FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY DECODER IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA FEATURES. Decoder reserves the right to terminate Customer’s access to any Beta Features at any time, for any reason.

2.6. Open Source Components. The Platform and/or Beta Features may contain third party software, including, without limitation, open source software components, that are subject to “open source” or “free software” licenses (collectively, “Open Source Components”). The Open Source Components are not subject to the grants in Section 2.2. Instead each Open Source Component is licensed under the terms of the applicable license agreements for such Open Source Components. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Components.

2.7. Prohibited Uses. Customer acknowledges that the Decoder Service embodies, contains, and constitutes valuable trade secrets of Decoder and its licensors and suppliers. Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:

1. use or allow access to the Decoder Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters;
2. use the AI Features or any Outputs to develop, train, or improve any AI, LLMs, or ML models (separate from authorized use of the Platform under this Agreement);
3. represent any Output as being approved or vetted by Decoder or any third party provider of the AI Features, or their respective affiliates, personnel, service providers, agents, or representatives;
4. represent any Output as being an original work or a wholly human-generated work;
5. license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make any portion of the Decoder Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;
6. access or use the Decoder Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose;
7. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms, and/or technology from or about the Decoder Service;
8. use the Decoder Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
9. upload, generate, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, misleading, harmful (or that may promote harm of individuals or a group), or otherwise objectionable content through or in connection with the use of the Decoder Service (or any part thereof);
10. upload to, or otherwise provide in connection with the use of, the Decoder Service, any Customer Materials that contain any Prohibited Data (as defined in Section 3.5);
11. remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Decoder or its licensors and/or suppliers on or within any part of the Decoder Service;
12. interfere with or disrupt the integrity or performance of the Decoder Service, or any related system, network, or data, or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Decoder Service;
13. take any action that imposes an unreasonable or disproportionately large load on the Decoder Service (or any part or component thereof), or its underlying infrastructure and systems;
14. attempt to gain unauthorized access to the Decoder Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Decoder, in the Decoder Service;
15. frame, mirror, or utilize framing techniques to enclose the Decoder Service or any portion thereof;
16. use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, or download the Decoder Service (or any part thereof), and/or the personal information of others without Decoder’s prior written permission or authorization;
17. use the Decoder Service to store or transmit any malicious or unsolicited code or software;
18. impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or
19. use the Decoder Service (or any part thereof), or transmit Customer Materials, Output, or any other content, data or materials, in any manner that violates in any law, rule, regulation, or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.

2.8. Support and Implementation Services. Support & Implementation Services. Decoder will use commercially reasonable efforts to provide Customer remote technical support by email and/or phone for Customer’s use of the Decoder Service during Decoder’s normal business hours (“Support”). To submit a request for Support please contact Decoder here: [email protected]. Decoder may also provide Customer with certain implementation, integration and/or other professional services (the “Implementation Services”). The scope, timeline and tasks of the parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the parties in writing.

2.9. Changes and Modifications. Decoder reserves the right, in its sole discretion, to make changes to the Decoder Service (or any part thereof) at any time that Decoder deems necessary or useful to comply with applicable laws or maintain or enhance: (a) the quality or delivery of services to Decoder’s customers; (b) the competitive strength of or market for Decoder’s services; or (c) the cost efficiency or performance of the Decoder Service.

2.10. Suspension or Termination. Decoder may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Decoder Service, without incurring any resulting obligation or liability, if: (a) Decoder receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Decoder to do so; or (b) Decoder believes, in its good faith and reasonable discretion, that (i) Customer or any Authorized User has accessed or used the Decoder Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Decoder Service; (iii) that such access and use poses an imminent security risk or an imminent risk to the Decoder Service or the information technology infrastructure used by or on behalf of Decoder in hosting and providing the Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Decoder or using third-party services (collectively, the “Decoder Systems”), or will interfere materially with the proper continued operation of the Decoder Service or Decoder Systems; or (iv) this Agreement, or any applicable Subscription Term, expires or is terminated. This Section 2.10 does not limit any of Decoder’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. CUSTOMER MATERIALS

3.1. License to Customer Materials. Customer hereby grants to Decoder a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Materials and Output generated by or on behalf of Customer or its Authorized Users solely to the extent necessary to provide Customer the Decoder Service and other services provided by Decoder to Customer hereunder or as otherwise expressly permitted in this Agreement.

3.2. Use of AI Features and Output. Customer acknowledges, understands and agrees that: (a) artificial intelligence and machine learning are rapidly evolving fields of study, (b) given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect output that does not accurately reflect real people, places, or facts, or conform to Customer’s specifications, prompts or requirements, and (c) Customer is responsible for evaluating the accuracy of any output generated by or on behalf of Customer’s and its Authorized Users’ through the AI Features (“Output”) as appropriate for Customer’s use case, including by using manual human review of the Output. ALL OUTPUT IS GENERATED THROUGH MACHINE LEARNING PROCESSES AND IS NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY DECODER. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THAT ALL OUTPUT IS ACCURATE AND APPROPRIATE FOR ANY AND ALL OF CUSTOMER’S AND ITS AFFILIATES’ AND AUTHORIZED USERS’ USE CASES OR APPLICATIONS.

3.3. Responsibility for Customer Materials. Customer acknowledges and agrees that Customer, and not Decoder, is solely responsible for the Customer Materials and its use of Output, including the legality, reliability, security, accuracy, and appropriateness thereof. Customer represents and warrants that: (a) Customer or its licensors own all right, title, and interest in and to the Customer Materials; (b) Customer has all necessary ownership, rights, authorizations, and consents to transmit, submit, and otherwise use the Customer Materials in connection with the Decoder Service and to grant Decoder the licenses in and to the Customer Materials as set forth in this Agreement, and (c) the Customer Materials do not and will not violate this Agreement, any third party’s trademark and/or branding usage guidelines or requirements, any applicable laws, rules, or regulations, or any third party’s intellectual property or other proprietary rights.

3.4. Personal Data. To the extent any Customer Materials include, or Customer or any Authorized Users otherwise transmits, processes, and/or provides, any data or information that identifies, relates to, describes, or is capable of being associated with, directly or indirectly, a natural person, through or in connection with the use of the Decoder Service (“Personal Data”), the parties acknowledge and agree that Customer is controller or business that controls, directs and otherwise determines the purposes for processing such Personal Data, and Decoder is processor or service provider processing such Personal Data on behalf of Customer, under any applicable data and/or privacy laws, rules or regulations (collectively, “Data Protection Laws”). Personal Data shall only be used by Decoder in accordance with this Agreement and as described in Decoder’s Privacy Notice. Customer represents and warrants that Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the Decoder Service and/or provide or make available such data to Decoder hereunder. In addition, each party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a party in its discretion to comply with any Data Protection Laws with respect to any Personal Data exchanged pursuant to this Agreement.

3.5. Prohibited Data. Customer will not provide (or cause or permit to be provided) any Prohibited Data to Decoder for processing under the Agreement, and Decoder will have no liability whatsoever for Prohibited Data, whether in connection with a Security Incident or otherwise. “Prohibited Data” means (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); © employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; or (f) any other information that falls within the definition of “special categories of data” under Data Protection Laws or that Customer does not otherwise have the right or authorization to process.

4. ADDITIONAL CUSTOMER OBLIGATIONS & RESPONSIBILITIES

4.1. Accounts. In order to use the Decoder Service, Customer must register an account for the Decoder Service (an “Account”), and may be required to register a sub-Account for each individual Authorized User. In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users, that is true, accurate, current, up to date, and complete. Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the Decoder Service using a false identity or fictitious name or information.

4.2. Account Security. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting the passwords, license keys and/or other access credentials for the Account. Customer is solely responsible for any activity originating from the Account, including, without limitation, any access of the Account by Authorized User and/or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify Decoder immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.

4.3. Administrators; Permissions. Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Authorized Users to access and use the Decoder Service on behalf of Customer and to assign certain permissions and access rights to each Authorized User (“Permissions”). Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Decoder Service. Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s) administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and Decoder Service to Authorized Users and the assignment of Permissions to Authorized Users. Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer.

4.4. Third Party Integrations. The Platform may offer integrations that enable Customer the ability to connect with or use certain third party products, applications, services or software through or in connection with the use of the Platform (collectively, “Third Party Integrations”). If Customer decides to access and use such Third Party Integrations, Customer’s use of such Third Party Integrations is governed solely by the terms and conditions, terms of use, terms of service, or similar end user agreements, and any other applicable policies governing the use of such Third Party Integrations. Decoder does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle Customer’s and/or its Authorized Users’ data, including, any Customer Materials or Personal Data that Customer or its Authorized Users transmit through the Third Party Integrations. Decoder is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s and/or any Authorized Users’ access or use of any such Third Party Integrations, or Customer’s reliance on the privacy practices or other policies of such Third Party Integrations. DECODER DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE DECODER SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS), AND DECODER WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.

5. SECURITY

5.1. Security. Decoder shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of Customer Materials stored, processed or hosted in Decoder Systems. Decoder shall inform Customer without unreasonable delay (but in no event, less than 72 hours), as soon as it has become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Customer Materials stored, processed or hosted in Decoder Systems (“Security Incident”). Decoder shall provide all reasonable information in Decoder’s possession concerning such Security Incident insofar as it affects Customer, including the following, to the extent then known: (a) the possible cause and consequences for any data subjects who’s Personal Data was involved in the Security Incident; (b) a summary of the Customer Materials affected, and the categories of Personal Data involved, if applicable; (c) a summary of the unauthorized recipients of the Customer Materials; and (d) the measures taken by Decoder to mitigate any damage. Decoder shall use reasonable efforts to provide Customer updates of further developments concerning a Security Incident.

5.2. Customer Responsibility. Customer has and will retain sole responsibility for: (a) the security of Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (b) the security and use of Customer’s and its Authorized Users’ access credentials; (c) all access to and use of the Decoder Service directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; (d) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Materials in a timely manner in the event of a physical or technical incident; and (e) taking any appropriate steps to securely encrypt or pseudonymize any Customer Materials.

6. FEES & PAYMENT TERMS

6.1. Subscription Fees. Customer shall pay the applicable subscription fees, as set forth on the applicable Order Form (the “Subscription Fees”). Except as otherwise set forth in the Order Form, the Subscription Fees payable by Customer will remain fixed during the Subscription Term unless Customer (a) exceeds any applicable Usage Parameters specified in the Order Form, or (b) subscribes to any additional features, functionality, or products which are subject to additional fees. Upon any increase in Subscription Fees as described above, Customer shall pay the Subscription Fees for such increase on pro-rated basis for the remainder of Customer’s then-current Subscription Term, and all applicable Subscription Fees shall renew in full at the start of any subsequent renewal term.

6.2. Support and Implementation Services Fees. Decoder’s standard Support offering is included in the Subscription Fees. If Customer requests any additional or enhanced Support beyond the standard offering, such Support may be subject to additional fees, which shall be set forth in the applicable Order Form entered into by Customer and Decoder for the purchase of such Support. If Customer purchases Implementation Services, Customer shall pay the applicable fees as set forth in the applicable Order Form.

6.3. Payment Terms. Unless otherwise set forth on the applicable Order Form: (a) all Subscription Fees are due and payable at the time Customer submits the applicable Order Form and upon the first date of any renewal term, and will be automatically billed to the credit card, or other payment method selected by Customer or otherwise specified in the Customer’s Account (the “Payment Method”), and (b) fees for Implementation Services and additional Support fees (if applicable) will be invoiced to Customer and payable by Customer within thirty (30) days of the invoice date. Customer represents and warrants that it has the legal right and authority to use the Payment Method provided by Customer hereunder. Customer hereby authorizes Decoder and its third party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and any other charges that Customer may incur in connection with the use of the Decoder Service, in accordance with the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. Customer agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with Decoder’s collection of past due amounts. If payment is not received or cannot be charged to Customer for any reason in advance, Decoder reserves the right to suspend or terminate Customer’s and its Authorized Users’ access to Decoder Service and/or terminate this Agreement for breach in accordance with Section 8.3(b). All fees are non-refundable and non-cancellable and will be paid in U.S. dollars or other currency as set forth in the applicable Order Form.

6.4. Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on Decoder’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of Decoder Service, or performance of any services by Decoder hereunder.

6.5. Trial and Promotional Offers. Decoder may make the Decoder Service available on a free trial basis or offer promotions (e.g., discounts, fee credits, etc.) for the Decoder Service. If Customer obtains trial access or accepts any promotion offers for the Decoder Service, Customer acknowledges and agree that upon expiration of the trial and/or Customer’s use of the promotion, continued use of the Decoder Service shall be subject to Customer’s payment of the then-current fees for the applicable Decoder Service. For the avoidance of doubt, and unless otherwise expressly authorized by Decoder in writing, if Customer terminates its Account prior to the end of a promotion period, or before using the entirety of the promotion, any unused promotions shall expire upon termination.

6.6. Changes. Decoder may change its fees and payment terms at its discretion; provided however, that any changes with respect to the fees will not take effect for Customer until the start of the next Subscription Term. Decoder will provide written notice to Customer of any changes to the fees that affect the Subscription purchased by Customer hereunder.

7. PROPRIETARY RIGHTS

7.1. Customer Proprietary Rights. As between the parties, Customer shall retain all right, title and interest in and to the Customer Materials and Output that is generated from Customer Materials input through the AI Features. Customer acknowledges and agrees that due to the nature of machine learning, Output may not be unique to Customer, and the AI Features may generate the same or similar output for Decoder’s other customers.

7.2. Usage Data. Customer acknowledges and agrees that Decoder has the right to collect, generate, process and use technical logs, metrics, analytics, and performance data relating to the operation, delivery and use of the Decoder Service and the processing of Customer Materials, but excluding Customer Materials (collectively, “Usage Data”); provided that, Decoder will only disclose Usage Data, to third parties, including subcontractors, for the purposes of facilitating the Decoder Service, to improve, test, and maintain the Decoder Service, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law. In addition, Customer agrees that Decoder may obtain and use Usage Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any Authorized Users or other individual or entity (the “De-Identified Data”). Decoder shall own, and may retain, use, and disclose, Usage Data and De-Identified Data for any lawful business purpose, including to improve its products and services.

7.3. Decoder Proprietary Rights. Subject to Customer’s rights in and to Customer Materials, Decoder or its licensors retain all right, title, and interest in and to (a) the Decoder Service, Decoder Systems, Decoder Materials (and Output generated from Decoder Materials), and all other materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the Decoder Service, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Decoder Service, (b) the Usage Data and De-Identified Data, (c) the trademarks, service marks, proprietary logos, and other distinctive brand features found in the Decoder Service, and any and all modifications, updates, enhancements, and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “Decoder Property”). There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by Decoder.

7.4. Feedback. To the extent Customer or any Authorized User provides any suggestions and/or feedback to Decoder regarding the functioning, features, and other characteristics of any Decoder Property, or any part or component thereof, or other materials or services provided or made available by Decoder hereunder (“Feedback”), Decoder shall own all rights, title and interest in such Feedback and may use and exploit Feedback in any manner and for any purpose.

8. TERM; TERMINATION

8.1. Term. Each Subscription Term shall: (a) commence on the start date and continue for the duration of the Subscription Term, each as set forth in the Order Form, and (b) unless otherwise set forth in the Order Form, automatically renew for successive terms equal to the initial Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.

8.3. Termination

1. Customer may terminate this Agreement for convenience, at any time upon thirty (30) days prior written notice to Decoder via email at [email protected], provided that; all remaining and unpaid Subscription Fees shall become immediately due and payable, and any prepaid fees for the Subscription Fees will not be refunded.
2. Either party may terminate this Agreement immediately upon written notice if the other party (i) materially breaches its obligations under this Agreement (including, payment obligations), and does not remedy such material breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party; or (ii) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within forty-five (45) days of its commencement, or makes an assignment for the benefit of creditors.

8.4. Effect of Termination. Upon termination of this Agreement for any reason:

1. Customer’s and its Authorized Users’ right to access and use the Decoder Service will automatically terminate, and Customer will cease and ensure all Authorized Users cease all access and use of the Decoder Service and related Documentation.
2. Decoder’s obligations to perform the Implementation Services hereunder shall immediately terminate.
3. Except in the event of termination by Customer in accordance with Section 8.3(b)(i) above, all outstanding fees immediately becoming due and payable, including, without limitation, any Subscription Fees payable for the remainder of the then-current Subscription Term. For the avoidance of doubt, in no event will termination (whatever the reason) relieve Customer of its obligations to pay any fees payable to Decoder for the period prior to the effective date of termination.
4. The receiving party of Confidential Information will promptly return or destroy Confidential Information in its possession or control, except that, with respect to Customer Materials, which shall be returned in accordance with clause (e) below, and notwithstanding the foregoing, the receiving party may retain Confidential Information in accordance with its standard backup or record retention policies or as required by law, subject to continued compliance with Sections 5 and 9.
5. Decoder will securely delete all Customer Materials in its possession or control in accordance with its then-current data retention policies, but in any event, within sixty (60) days following the effective date of termination. If Customer has purchased access to the Decoder Service, Customer shall have fourteen (14) days following the effective date of termination to export Customer Materials stored on the Platform (this shall not apply if Customer has obtained the Decoder Service on a trial basis).

8.5. Survival. Each party is responsible for any obligations to the other party that arose prior to any termination or expiration of this Agreement. In addition, except as otherwise set forth in this Agreement, the parties’ rights and obligations under the following Sections shall survive: 1, 2.4, 2.5, 5, 6, 7.3, 7.4, 8, 9, 10, 11, 13, 15 and 16.

9. CONFIDENTIALITY

9.1. Definition. “Confidential Information” means: (a) with respect to Decoder: the Beta Features, Documentation, Feedback, and any non-public technical and business information regarding any Decoder Property, or any of Decoder’s other products and/or services, and all materials and information disclosed under this Agreement that are marked “confidential” by Decoder or that Customer knows or should have known, under the circumstances, are considered confidential by Decoder; and (b) with respect to Customer: the non-public aspects of the Customer Materials, and all materials and information disclosed under this Agreement that are marked “confidential” by Customer.

9.2. Use and Protection. The receiving party will (a) use Confidential Information only to fulfill its obligations and exercise its rights in this Agreement, (b) not disclose Confidential Information to third parties without the disclosing party’s prior approval, except as permitted in this Agreement, and (c) protect Confidential Information using at least the same precautions the receiving party uses for its own similar information and no less than a reasonable standard of care. The receiving party may disclose Confidential Information of the disclosing party to its employees, agents, contractors and other representatives (collectively, “Representatives”) having a legitimate need to know, provided that, the receiving party remains responsible for its Representatives’ compliance with this Section 9, and such Representatives are bound to confidentiality obligations no less protective than this Section 9.

9.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the disclosing party; (c) it rightfully received from a third party without confidentiality restrictions; or (d) it independently developed by the receiving party without using or referencing disclosing party’s Confidential Information. The receiving party may disclose Confidential Information of the disclosing party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the receiving party shall first give the disclosing party prompt notice of such order so that the disclosing party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy.

10. INDEMNIFICATION

10.1. Indemnification by Decoder. Decoder shall defend or settle any claim, action, or suit brought by a third party (each, a “Claim”) against Customer alleging that Customer’s use of the Platform as authorized herein infringes or misappropriates the Intellectual Property Rights of any third party, and pay any damages, liabilities, fines, penalties, assessments, costs and expenses (including reasonable legal fees), and amounts (collectively, “Losses”) finally awarded by or agreed to (and reasonably approved by Decoder) in settlement of such Claim. If Customer’s use, or Decoder reasonably believes Customer’s use, of the Platform (or any part thereof) is or may be enjoined, or if otherwise required by settlement or injunction, Decoder may elect at its option to: (a) obtain a license for the affected portion of the Platform; (b) modify or replace the affected portion of the Platform, so as to avoid infringement, without materially degrading the functionality of the Platform; or © terminate or discontinue the Platform (or affected portion thereof). Notwithstanding the foregoing, Decoder will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based on or arising from: (i) any modification of the Decoder Service (or any part thereof) by any person other than Decoder or its authorized representatives, (ii) Third Party Integrations or any third party AI Features, (iii) the use, operation, or combination of the Decoder Service (or any part thereof) with software programs, data, equipment, materials, or business processes not provided by Decoder, if such claim would not have arisen but for such use, operation, or combination, (iv) Customer Materials or Output (except for Output based solely on Decoder Materials), (v) Customer’s use of the Decoder Service other than in accordance with this Agreement, and/or (vi) any Beta Features, or any free, trial, or promotional use of the Decoder Service. This Section 10.1 states Customer’s sole and exclusive remedy and Decoder’s sole and exclusive obligation and liability with respect to any claim of intellectual property infringement and/or misappropriation.

10.2. Indemnification by Customer. Customer shall indemnify, defend, and hold Decoder and its affiliates, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any Claims brought against Decoder and any Losses attributable to such Claims to the extent arising out of or related to: (a) Customer’s or its Authorized Users’ breach of this Agreement, including, but not limited to, any representation, warranty, or agreements referenced herein; (b) Customer Materials or Output, including, but not limited to, allegations that any Customer Materials or Output violate any applicable laws, rules, or regulations or infringe or misappropriate the intellectual property or privacy rights of any third party; (c) Customer’s or any Authorized Users’ breach of any Data Protection Laws or violation of any third-party right, including without limitation any Intellectual Property Right, publicity, confidentiality, property, or privacy right; (d) breach or violation by Customer or its Users of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any third party AI Features or any Third Party Integrations; or (e) Customer’s or its Users’ use or misuse of the Decoder Service and/or any Output.

10.3. Procedure. The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party (provided that, a delay in providing notice does not excuse the indemnifying party’s obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense thereof, and (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence, or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent. The indemnified party may participate and retain its own counsel at its own expense.

11. DISCLAIMERS

THE DECODER SERVICE, AI FEATURES, SUPPORT, IMPLEMENTATION SERVICES, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY DECODER HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. DECODER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. DECODER DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE DECODER SERVICE (OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY AI FEATURES), SUPPORT, IMPLEMENTATION SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY DECODER: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.

12. LIMITATION OF LIABILITY

12.1. CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION, FOR ANY (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (B) INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (C) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.

12.2. DAMAGES CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR RELATING TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, ANY AMOUNTS GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO DECODER FOR THE DECODER SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR, WITH RESPECT TO ANY BETA FEATURES OR FREE, TRIAL, OR PROMOTIONAL VERSION OF THE DECODER SERVICE (INCLUDING ANY FREE-TIER SUBSCRIPTIONS), $100.00 (THE “STANDARD CAP”).

12.3. EXCLUDED CLAIMS. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY BREACH OF SECTION 9 (CONFIDENTIALITY), DECODER’S OBLIGATIONS UNDER SECTION 5.1 (SECURITY), CUSTOMER’S OBLIGATIONS UNDER SECTION 2.7 (PROHIBITED USES) OR 5.2 (CUSTOMER RESPONSIBILITY), OR A PARTY’S INDEMNIFICATION OBLIGATIONS AND DEFENSE OBLIGATIONS PURSUANT TO SECTION 10 (COLLECTIVELY, “EXCLUDED CLAIMS”); PROVIDED THAT, IN NO EVENT SHALL DECODER’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO EXCLUDED CLAIMS EXCEED TWO TIMES (2X) THE STANDARD CAP.

12.4. BASIS OF THE BARGAIN. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION 12 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT DECODER WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. DECODER DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO DECODER’S LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF DECODER’S SUPPLIERS.

12.5. JURISDICTIONAL ISSUES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES WITH RESPECT TO CONSUMERS (I.E., A PERSON ACQUIRING GOODS OTHER THAN IN THE COURSE OF A BUSINESS, IN SUCH STATES OR JURISDICTIONS, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 11 AND 12 SHALL APPLY TO A CONSUMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE SUCH CONSUMER IS LOCATED.

13. MODIFICATIONS TO THISAGREEMENT

This Agreement at any time, subject to this Section. Except as otherwise stated in this Section, all updates and modifications to this Agreement will be effective from the day they are posted on our Terms of Service Agreement page, or through the user interface of the Platform, as indicated by the “Last Updated” date set forth above. Decoder will provide Customer reasonable prior notice of any material changes to this Agreement (“Material Changes”) by email. If Customer does not agree to any such Material Changes, then, prior to the effective date of such Material Changes (as specified in the email notice to Customer), then:

1. if Customer has obtained access to the Decoder Service on a free or trial basis, Customer must terminate its Account as set forth in Section 8.3(a) above and cease all use and access of the Decoder Service, or
2. if Customer has paid for access to the Decoder Service, Customer may either:

1. object to such Material Changes by notifying Decoder of the specific objections via email at [email protected], in which case, unless otherwise mutually agreed upon by the parties in writing, the version of this Agreement prior to such Material Changes (subject to any non-material updates, which shall take effect as set forth herein and are not subject to any right of objection or termination remedies herein) shall remain in effect until the earlier to occur of (1) Customer’s acceptance of subsequent Material Changes, or (2) the end of Customer’s then-current Subscription Term (not including any renewal), after which time the then-current version of the Agreement posted at Terms of Service Agreement page at the time of renewal will go into effect, unless Customer cancels renewal of its subscription to the Decoder Service in accordance with Section 8.2); or
2. elect to terminate this Agreement by providing written notice to Decoder by email at [email protected], provided that, all fees shall become immediately due and payable for the remainder of Customer’s then-current Subscription Term.

The foregoing states Customer’s sole and exclusive remedy for any changes or modifications to this Agreement that Customer does not agree with. Customer and/or its Authorized Users may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Decoder Service, and in any event (unless Customer has notified Decoder of its objection to the modified Agreement or terminated this Agreement as set forth above) Customer’s or any of its Authorized User’s continued use of the Decoder Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

14. GENERAL

14.1. Governing Law; Venue. This Agreement will be governed by the laws of the State of California, U.S.A., without giving effect to any conflicts of law principles that may require the application of the law of a different jurisdiction. This Agreement (including without limitation, the Decoder Service and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the State and Federal courts located in Orange County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party will be entitled to recover costs and reasonable attorneys’ fees. Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of Decoder’s intellectual property or confidentiality rights, Decoder may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country.

14.2. Government Rights. The Platform and AI Features provided under this Agreement (and their underlying software) are commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), any software underlying the Platform and AI Features are deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.

14.3. Availability of Service. Information describing the Decoder Service is accessible worldwide but this does not mean is, or certain portions thereof, and/or Decoder Service, are or will be available in Customer’s country. Decoder may restrict access to the Decoder Service, or portions thereof, and/or any Decoder Service, in certain countries in its sole discretion. It is Customer’s responsibility to make sure the use of the Decoder Service is legal in Customer’s country of residence.

14.4. Publicity. Customer agrees that Decoder may include Customer’s name, logo, and/or other marks on Decoder’s website and in other internal and external marketing materials and/or presentations for the sole purpose of identifying Customer as a user of the Decoder Service.

14.5. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.

14.6. Notices. All notices permitted or required to be sent to Decoder under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email. Notices shall be sent to each party at their respective addresses set forth in the initial Order Form, or to such other address as may be specified by either party to the other party by written notice in accordance with this Section.

14.7. Consent to Electronic Notices. Customer consents to receiving electronic communications from Decoder via email, through the user-interface of the Decoder Service or through Decoder’s authorized support communication channels, which may include notices about transactional information and other information concerning or related to Customer’s use of the Decoder Service. These electronic communications are part of Customer’s relationship with Decoder and Customer receives them as part of Customer’s access and use of the Decoder Service. Customer agrees that any notices, agreements, disclosures, or other communications that Decoder sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.

14.8. Assignment. Customer may not assign its rights or obligations under this Agreement without Decoder’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. Decoder may freely assign or transfer this Agreement in its entirety to any third party, and may delegate any of its rights or obligations under this Agreement (including the performance of any services hereunder) to its affiliates, employees, contractors, and subcontractors, without Customer’s consent. This Agreement shall be binding on the parties and their respective successors and permitted assigns.

14.9. Third Party Rights. This Agreement is not intended to grant rights to anyone except Customer and Decoder, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.

14.10. Entire Agreement; Construction. This Agreement, together with the initial Order Form and any other Order Forms entered into by the parties hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.