Diagrid terms of service

1. SCOPE OF SERVICE AND RESTRICTIONS

1.1 Access to and Scope of Service. Subject to Customer's compliance with this Agreement (including payment of any applicable Fees as specified in a corresponding Service Order), Diagrid will use commercially reasonable efforts to make the service specified in the corresponding Service Order or Service Description (herein, the "Service") available to Customer as set forth in this Agreement. Customer may access and use the Service during the period specified in the Service Order, or Service Description, as applicable. Any such use of the Service by Customer is solely for Customer's internal business.

1.2 Restrictions. Customer will use the Service only in accordance with the Service Description and all applicable laws, including, but not limited to, laws related to data. Customer agrees not to (and will not allow any third party to): (i) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available; or (iii) rent, resell or otherwise allow any third-party access to or use of the Service.

1.3 Ownership. Diagrid retains all right, title, and interest in and to the Service, and any software, products, works or other intellectual property created, used, provided, or made available by Diagrid under or in connection with the Service. Customer may from time to time provide suggestions, comments, or other feedback to Diagrid with respect to the Service ("Feedback"). Customer shall, and hereby does, grant to Diagrid a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

1.4 Software License. Subject to the terms and conditions of this Agreement, to the extent Diagrid makes Diagrid proprietary software available to Customer, Diagrid hereby grants to Customer, and Customer hereby accepts from Diagrid, a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to run such software solely as necessary to make use of the Service.

1.5 Customer Data. Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data; and (c) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any third party. "Customer Data" shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.

1.6 Use of Customer Data. Customer hereby grants to Diagrid a limited license to use the Customer Data as necessary to provide the Service to Customer. Customer acknowledges and consents to the collection of Customer Data resulting from the activities and obligations set forth in this Agreement.

1.7 Aggregated De-Identified Data. Notwithstanding anything to the contrary, Diagrid may freely use Aggregated De-identified Data for Diagrid's business purposes, provided that we will not share such data in a manner that could identify you.

1.8 Personal Data. Customer acknowledges and agrees that it will not make available or otherwise expose Diagrid to any personally identifiable information or similar data subject to applicable law or regulation unless Diagrid expressly agrees otherwise in writing.

1.9 Trials. If Customer is accessing or making use of the Service on a trial or evaluation basis, Customer may use the Service during the Trial provided such use does not exceed the Service levels set forth in the corresponding Service Order or Service Description. Customer acknowledges and agrees that the Trial is provided on an "as-is" basis and without any indemnification, support, or warranties or representation of any kind.

1.10 Uptime and Support. Subject to Customer's payment of the corresponding fees and compliance with its obligations in the Agreement, Diagrid will use commercially reasonable efforts to make the Service available to Customer during the period specified in the corresponding Service Order.

1.11 Service Suspension. Diagrid may suspend Customer's access to or use of the Service: (a) immediately if Diagrid reasonably believes Customer's use of the Service may pose a security risk to or may adversely impact the Service; (b) immediately if Customer becomes insolvent; (c) following thirty (30) days written notice if Customer is in breach of this Agreement; or (d) Customer has failed to pay Diagrid the Fees with respect to the Service.

1.12 Discontinuance. Customer acknowledges and agrees that in regard to any Trial or no-fee services, Diagrid may discontinue or terminate such Service at any time and for any reason.

2. FEES AND TAXES

2.1 Fees. Customer shall pay to Diagrid the fees as set forth in each applicable Service Order(s) or Service Description (collectively, the "Fees") and will provide accurate and updated billing contact information. Customer acknowledges and agrees that Fees are non-refundable.

2.2 Invoicing Terms. If the Service Order or Service Description specifies that payment will occur by a method other than a credit card, Customer shall provide a purchase order number in the applicable amount. Diagrid will invoice Customer either monthly or according to the billing frequency stated in the Service Order. Invoices are due pursuant to the corresponding Service Order. If any invoiced amount is not received by Diagrid by the due date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

2.3 Taxes. Any and all payments made by Customer in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Diagrid for all sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Diagrid.

3. TERM AND TERMINATION

3.1 Term. The term of this Agreement shall commence on the Effective Date and unless terminated earlier according to this Section 3, will end on the last day of the term specified in the last Service Order or Service Description (the "Term"). Each Service Order will renew automatically at the end of the applicable term unless either party provides to the other advance written notice with respect to non-renewal at least thirty (30) days prior to the end of the then current term.

3.2 Termination. This Agreement may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach; or (b) by Diagrid upon written notice to Customer if Customer has made any assignment for the benefit of its creditors, has any bankruptcy action taken against it, or has undergone liquidation or dissolution.

3.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Diagrid Confidential Information. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination.

3.4 Survival. The following provisions will survive termination of this Agreement: Sections 1.2-1.8, 3.3, 3.4, Section 4, Section 7, Section 8.

4. CONFIDENTIALITY

During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information ("Confidential Information"). All materials and information provided by the disclosing party and identified at the time of disclosure as "Confidential" or bearing a similar legend shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Diagrid Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder.

5. INDEMNIFICATION

5.1 Indemnification by Customer. Customer will defend, indemnify, and hold Diagrid, its affiliates, suppliers and licensors harmless from and against any claims, damages, losses, liabilities, costs, and expenses arising out of or relating to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party's intellectual property rights resulting from Customer Data.

5.2 Indemnification by Diagrid. In relation to any paid or fee-based Service offered by Diagrid per this Agreement, Diagrid will defend, indemnify, and hold Customer harmless from and against any third-party claims arising from claims that Customer's use of the Service directly infringes or misappropriates a third party's intellectual property rights (an "Infringement Claim").

5.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity, the Indemnified Party shall notify the indemnifying party in writing as soon as practicable, and allow the indemnifying party to assume full control of the defense of the claim.

6. WARRANTY

6.1 Warranty. The Service, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable Documentation, will perform, in all material respects, the functions described in the Documentation during the Term.

6.2 Exclusive Remedies. In the event of a breach of warranty by Diagrid under this Agreement, Customer's sole and exclusive remedy shall be prompt correction of any material non-conformance.

6.3 Disclaimer of Warranty. Diagrid does not represent or warrant that the operation of the Service will be uninterrupted or error free. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, DIAGRID MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE. DIAGRID HEREBY EXPRESSLY EXCLUDES ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

7. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL DIAGRID BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. DIAGRID'S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED EITHER (A) THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER OR SERVICE DESCRIPTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, OR (B) IN THE CASE OF ANY TRIAL OR NO-FEE SERVICES, ONE HUNDRED ($100) US DOLLARS.

8. MISCELLANEOUS

8.1 Export Control. Customer hereby certifies that Customer will comply with all current US Export Control laws.

8.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting of information in violation of any privacy laws or regulations.

8.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party, except that Diagrid may transfer and assign its rights in connection with a change in control, acquisition or sale of all or substantially all of its assets.

8.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, pandemics, Internet outage, terrorism, war, fires, earthquakes, and other disasters.

8.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail, or by recognized courier service.

8.6 No Agency. Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement.

8.7 Governing Law. This Agreement shall be governed exclusively by the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction.

8.8 Publicity. Customer hereby grants Diagrid the right to identify Customer as a Diagrid Customer, and use Customer's name, mark and/or logo on Diagrid's website and/or in Diagrid's marketing materials.

8.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.