Terms of Service

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. TOGETHER WITH THE TERMS YOU HAVE ELECTED ON THE DECODABLE PLATFORM, THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE DECODABLE PLATFORM AND THE PROVISION BY DECODABLE OF ASSOCIATED SERVICES. BY ACCESSING THE DECODABLE PLATFORM OR USING DECODABLE SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS THE DECODABLE PLATFORM OR ACCESS AND USE THE DECODABLE SERVICES.

This Platform-as-a-Service Agreement (this “Agreement”) is entered into by and between Decodable, Inc. (“Decodable”) and the customer indicated on the Decodable Platform that is purchasing a Subscription and/or services hereunder (“You” or “Customer”), and is effective as of the date you access the Decodable Platform and/or receive the Decodable services hereunder, whichever comes first (the “Effective Date”). If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You,” “Your” and “Customer” shall refer to such entity.

This Agreement permits Customer to access the Decodable Platform and/or receive the Decodable services hereunder pursuant to the terms and conditions contained herein.

The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth elsewhere in this Agreement.

1. “Content” or “Customer Data” means all applications, data, data files and software provided by Customer or any third party at the direction or on behalf or for the benefit of Customer that reside on, or runs on or through, the Decodable Platform and/or services hereunder.
   
2. “Decodable Platform” means the web-based graphical user interface, command line interface, and API version of the Decodable offering for which Customer has purchased a Subscription hereunder, as indicated by Customer’s election within the Decodable Platform, but expressly excluding any Open Source Software.
3. “Decodable services” means the online services operated by Decodable, including the Decodable Platform, that is powered by Decodable technology which provides a web-based interface, command line interface, and API through which a person may access features and functions of the Decodable Platform, including but not limited to data migration, data synchronization, data quality actions, or application and event based integrations.
4. “Documentation” means the end user manuals or documentation regarding the use of the Decodable Platform and/or Decodable services hereunder published by Decodable.
   “License” means a license granted under Section 2.
5. “Open Source Software” means individual software components that are provided with the Decodable Platform, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components.
6. “Subscription” means Customer’s right to use the Decodable Platform, subject to the restrictions for which such right has been purchased.
   
7. “Subscription Term” means the period of time indicated within the Decodable Platform for which Customer obtains the right to access the Decodable Platform on a subscription basis.

• License Grants. Subject to the terms and conditions of this Agreement, including the payment of all applicable fees, Decodable hereby grants to Customer, solely for Customer’s internal business operations, a limited, non-exclusive, non-transferable right and license to: (i) access the Decodable Platform during the Subscription Term; (ii) use, reproduce and distribute internally a reasonable number of copies of the Documentation; and (iii) permit third party contractors performing services on Customer’s behalf to use the Decodable Platform and Documentation in accordance with the terms and conditions of this Agreement provided that (A) such use must be solely for the benefit of Customer; and (B) Customer shall be responsible for all acts and omissions of such third parties.
• Restrictions. Customer may not, and may not cause or permit others to: (i) remove or modify any program or services markings or any notice of Decodable’s or its licensors’ proprietary rights; (ii) make the Decodable services hereunder, including any Decodable programs or materials to which Customer is provided access, available in any manner to any third party; (iii) attempt to circumvent, disable or defeat any limitations on Customer’s use of the Decodable Platform; (iv) use the Decodable services hereunder other than for licensed purposes; (v) modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the Decodable services hereunder; (vi) disclose results of any benchmark tests or performance tests of the Decodable services hereunder without Decodable’s prior written consent; (vii) sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Decodable services hereunder or materials available, to any third party, except as expressly provided under this Agreement; or (viii) alter or remove any proprietary notices in the Decodable Platform.
• Availability. Decodable will use commercially reasonable efforts to make the Decodable Platform available 24 hours a day, 7 days a week, except for: (i) scheduled downtime or (ii) any unavailability caused by circumstances beyond Decodable’s reasonable control, including without limitation, acts of hosting providers, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays.
• Account Access & Data. Customer will be assigned a unique user name and password to access the Decodable services hereunder. Customer shall be responsible for identifying and authenticating all end users, for approving access by such end users to the Decodable services hereunder, for controlling against unauthorized access by such end users, and for maintaining the confidentiality of user names, passwords and account information. Decodable is not liable for any harm caused by Customer end users, including individuals who were not authorized to have access to the Decodable services hereunder. Customer shall be responsible for all activities that occur under Customer’s and Customer’s end users’ passwords or accounts or as a result of Customer’s or Customer’s End Users’ access to the Decodable services hereunder. Furthermore, Customer agrees not to transmit or store infringing, obscene, threatening, libelous, or otherwise unlawful or offensive Content, materials or information that violates the privacy rights of any person or to transmit or store material containing software virus, worms, trojan horses or other harmful computer code when using the Decodable services hereunder. Customer agrees that Customer shall abide by all applicable local, state, national and international laws and regulations in connection with Customer’s use of the Decodable services hereunder, including those related to taxes, data privacy and the transmission of technical or personal data. Decodable does not own or accept any responsibility for any Content, data or material that Customer processes or submits to the Decodable services hereunder in the course of Customer’s use of such services. DECODABLE WILL NOT PERMANENTLY MAINTAIN ANY CUSTOMER DATA OR CONTENT ON ITS SYSTEMS OR THROUGH ITS DECODABLE SERVICES EXCEPT FOR METADATA. Decodable shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer shall be fully responsible for all internet access and connectivity issues to the Decodable services hereunder.
• Feedback. Customer may, but Customer is not obligated to, provide Decodable with certain feedback, suggestions, comments, ideas, or other concepts relating to the Decodable Platform and/or Decodable services (collectively, “Feedback”). Customer (i) represents and warrants that Customer has the right to disclose the Feedback and that the Feedback does not contain the confidential or proprietary information of any third party or violate any third-party rights, and (ii) irrevocably grants Decodable a paid-up, royalty-free, perpetual, worldwide, sublicensable and transferable right and license to use, modify, prepare derivative works from, publish and otherwise distribute the Feedback, in each case by any means and in any manner now known or hereafter invented. For the avoidance of doubt, Feedback does not include any Confidential Information of Customer.
• Delivery; Subscription Keys. Decodable Platform shall be deemed delivered to Customer upon Decodable making available to Customer the applicable access protocols. Customer understands and agrees that such protocols are required to enable the Decodable Platform and that such protocols are valid only during the Subscription Term. 
• Protection Against Unauthorized Use. Customer shall promptly notify Decodable of any unauthorized use, reproduction or distribution of the Decodable Platform, Decodable services or Documentation of which it becomes aware. In the event of any unauthorized use, reproduction or distribution by any of Customer’s end users, employees, agents or representatives, Customer shall use commercially reasonable efforts to terminate any such unauthorized use and to retrieve any unauthorized copy of the Decodable Platform, Decodable services or Documentation in the possession or control of the person or entity engaging in such unauthorized use. Decodable may, at its option and expense, participate in any such proceeding and, in such an event, Customer shall provide such authority, information and assistance related to such proceeding as Decodable may reasonably request.
• Customer Cooperation. Customer agrees to provide Decodable with such cooperation, materials, information, access and support which Decodable deems to be reasonably required to allow Decodable to successfully provide services hereunder. Customer understands and agrees that Decodable’s obligations to provide services hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.

• Subcontractors. Decodable reserves the right to use subcontractors to perform services on Decodable’s behalf, and Customer hereby consents to such use, provided that Decodable shall remain solely responsible to Customer for the provision of all applicable services.
• Ownership. Customer retains ownership of all Content/Customer Data, materials or information used or processed through the Decodable Platform and/or Decodable services hereunder. Decodable and its licensors retain all ownership and intellectual property rights to the Decodable Platform and services hereunder. In the course of performing services hereunder, Decodable may create derivative works of the Decodable Platform, new software or other works of authorship (collectively “Work Product”). Decodable shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Decodable hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s license to the Decodable Platform set forth in Section 2, above. Nothing in this Agreement shall be deemed to prohibit Decodable from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing services hereunder. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Decodable to Customer (“Materials”), other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by Decodable to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Decodable. All Decodable trademarks, trade names, logos and notices present on any Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Decodable trademarks without Decodable’s express written authorization. Decodable shall have the right to use Customer trademarks in Decodable advertising and promotional materials for the purpose of indicating that Customer is a customer of Decodable products and services. 

• Fees. Customer agrees to pay Decodable the fees for the Subscription to the Decodable Platform and/or otherwise for Decodable services as elected by Customer within the Decodable Platform.
• Invoicing. Unless otherwise specified in the Decodable Platform, the fees for services hereunder shall be invoiced upon the Effective Date.
• Payment. Unless otherwise specified in the Decodable Platform, all invoices will be paid in US dollars and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. Customer shall pay all amounts due under this Agreement to Decodable via the payment method set forth in any invoices or as otherwise specified within the Decodable platform. Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.
• Taxes. All amounts payable by Customer to Decodable under this Agreement are exclusive of any tax, levy, other similar governmental charge that may be assessed by any jurisdiction (“Taxes”). Customer agrees to pay such Taxes, whether based on gross revenue, the delivery, possession or use of the Decodable Platform, the provision of services hereunder, the execution or performance of this Agreement or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs; provided, however, that Customer shall have no liability for any net income, net worth or franchise taxes assessed on Decodable by the United States or any state thereof. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Decodable, then the amount of the payment to Decodable shall be automatically increased to totally offset such tax, so that the amount actually remitted to Decodable, net of all taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Decodable with the official receipt of payment of these taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Decodable with a certificate of exemption acceptable to the taxing authority.

• Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.b below, continue in force until the expiration of the applicable Subscription Term.
• Termination; Post Termination. Either party may, upon written notice to the other party, terminate this Agreement in the event of a material breach by the other party, which such other party fails to cure within thirty (30) days of receiving written notice thereof from the non-breaching party. Notwithstanding the foregoing, Decodable shall have the right to terminate this Agreement immediately upon written notice (email to suffice) in the event of any breach by Customer of the license granted in Section 2 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Decodable Platform, the Decodable services and Documentation and destroy (and certify to Decodable in writing the fact of such destruction), or return to Decodable, all Materials then in Customer’s possession or under Customer’s control.
• Unless earlier terminated in accordance with Section 5.b, upon the expiration of the Subscription Term, Customer’s Subscription will automatically renew for a term equal to the Subscription Term. In such case, the terms and conditions of this Agreement shall remain in full force and effect throughout the duration of the extended Subscription Term.
• Suspension. In addition to its other rights under this Agreement, Decodable may suspend Customer’s access to the Decodable Platform and Decodable services hereunder upon written notice: (i) to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (ii) for Customer’s non-payment of applicable fees or for (iii) any reasonably suspected unauthorized use of the Decodable Platform or Decodable services hereunder by Customer or any of its end users. In the event of any such suspension, Decodable will promptly restore use of the Decodable services hereunder to Customer as soon as the event giving rise to the suspension has been resolved to Decodable’s satisfaction.
• Survival. The following sections will survive any termination or expiration of this Agreement: 1; 4; 5; 6; 7; 8; 9 and 10.

• Confidential Information. “Confidential Information” means information or materials provided by one party to the other which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person would believe to be confidential, including but not limited to the Decodable Platform, Decodable services, Documentation, employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with Decodable Platform, anything provided by Decodable in connection with its support services hereunder and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.
• Non-Use and Non-Disclosure. Each party shall at all times, both during the term of this Agreement and thereafter, retain in confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to exercise such party’s rights or carry out its duties under this Agreement, nor shall either party disclose any Confidential Information to third parties without the other party’s prior written consent. Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section.
• Exclusions. The foregoing obligations of confidentiality shall not apply to information that: (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; (iv) is independently developed by the receiving party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party). The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
• Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order if such party: (i) unless prohibited by law, gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.

• With respect to any and all Content or other data or information furnished for processing via the Decodable Platform, whether by or on behalf of Customer directly, or by Decodable or by any third party at the direction or on behalf of Customer (collectively, “Ingested Data”): (i) Customer grants to Decodable, both during and after the term of this Agreement, the non-exclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use such Ingested Data in the manner indicated by Customer, as well as, on a non-identifiable basis (i.e., not identifiable with Customer, except as required by law), to improve Decodable’s products and services and for any other lawful purpose; and (ii) any such use of Ingested Data by or on behalf of Decodable shall not violate any law, rule or regulation, or violate or infringe the rights of any third party.
• Decodable represents and warrants that it will provide the Decodable Platform and Decodable services hereunder in all material respects in accordance with the applicable Documentation therefor. Customer’s exclusive remedy and Decodable’s sole obligation for any failure of the Decodable Platform or Decodable services to perform in all material respects in accordance with its Documentation will be for Decodable to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the Decodable Platform or Decodable services with any products, goods, services or other items furnished by anyone other than Decodable, or (iv) any modification not made by or for Decodable, or any use of the Decodable Platform or Decodable services by Customer in violation of the terms of this Agreement.
• EXCEPT AS SET FORTH IN SECTION 7.b ABOVE, THE DECODABLE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS, AND DECODABLE SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, AND DECODABLE AND ITS LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO SAME. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DECODABLE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE DECODABLE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS AND DECODABLE SERVICES PROVIDED BY DECODABLE HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, DECODABLE DOES NOT WARRANT RESULTS OF USE OR THAT THE DECODABLE PLATFORM OR SERVICES WILL BE ERROR FREE OR THAT THE CUSTOMER’S USE OF THE DECODABLE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS, OR DECODABLE SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. DECODABLE USES A THIRD-PARTY DATA CENTER TO HOST THE DECODABLE PLATFORM AND SERVICES. CUSTOMER ACKNOWLEDGES THAT DECODABLE DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE DECODABLE PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY FACILITIES. DECODABLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING THEREFROM.

• Obligation. Subject to the applicable conditions and limitations set forth in this Section 8, Decodable will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Decodable Platform and/or Decodable services hereunder infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Decodable Platform and/or Decodable services hereunder, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Decodable or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
• Remedies. If the Decodable Platform and/or Decodable services hereunder are, or in Decodable’s reasonable opinion are likely to become, the subject of an Infringement Claim, Decodable may, at its expense and option: (i) obtain the right for Customer to continue to use the Decodable Platform and/or Decodable services hereunder; (ii) modify the Decodable Platform and/or Decodable services hereunder so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) is commercially reasonable, terminate Customer’s license to use the Decodable Platform and/or Decodable services hereunder and promptly refund to Customer any pre-paid, but unused fees paid by Customer to Decodable prior to such termination.
• Exclusions. Decodable will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) the failure of Customer to use an update of the Decodable Platform and/or Decodable services hereunder that would avoid the infringement; (ii) a modification of the Decodable Platform that is not performed by Decodable; (iii) the combination, operation, or use of the Decodable Platform and/or Decodable services hereunder with any other products, services or equipment not provided by Decodable; (iv) any intellectual property right owned or licensed by Customer, excluding the Decodable Platform or Decodable services hereunder or (v) any third party open source software.
• Conditions. The obligations of Decodable in Section 8 are conditioned upon Customer (i) notifying Decodable promptly of any threatened or pending Infringement Claim, (ii) giving Decodable, reasonable assistance and information requested by Decodable in connection with the defense or settlement of the Infringement Claim and (iii) tendering to Decodable sole control over the defense and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Decodable, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
• THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DECODABLE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE DECODABLE PLATFORM AND/OR THE DECODABLE SERVICES.

• Customer Indemnification. To the maximum extent allowed by applicable law, Customer shall indemnify and hold harmless Decodable, its licensors and its subsidiaries, affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Decodable (i) gives written notice of the claim promptly to Customer; (ii) gives Customer sole control of the defense and settlement of the claim (provided that any settlement releases Decodable of all liability and such settlement does not affect Decodable’s business); (iii) provides to Customer all available information and assistance reasonably requested; and (iv) has not compromised or settled such claim.
• Disclaimer of Certain Damages. EXCEPT IN CONNECTION WITH FULFILLMENT OF INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CUSTOMER OR DECODABLE OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE DECODABLE PLATFORM OR THE DECODABLE SERVICES, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DECODABLE PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. DECODABLE IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER IS FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. 
• Damages Cap. IN NO EVENT SHALL DECODABLE’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY DECODABLE UNDER THIS AGREEMENT FOR THE ACCESS TO THE DECODABLE PLATFORM AND/OR SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 
• Exclusions. Decodable will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) the failure of Customer to use an update of the Decodable Platform and/or Decodable services hereunder that would avoid the infringement; (ii) a modification of the Decodable Platform that is not performed by Decodable; (iii) the combination, operation, or use of the Decodable Platform and/or Decodable services hereunder with any other products, services or equipment not provided by Decodable; (iv) any intellectual property right owned or licensed by Customer, excluding the Decodable Platform or Decodable services hereunder or (v) any third party open source software.

• Assignment. Customer shall not assign this Agreement, in whole or in part, or any or all of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Decodable. Any assignment in violation of this Section 10.a shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
• Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party’s reasonable control.
• Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California, without regard to its conflicts of law principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. If any provision(s) hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
• Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered via email to the contact person for such party identified in the Decodable Platform. 
• Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
• Entire Agreement. This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer.