Commercial Terms of Service

Last Updated: April 1, 2026

These Commercial Terms of Service (“Terms”) are an agreement between L9 Labs, Inc., a Delaware corporation (“Provider”), and the organization, company, or other entity that you represent (“Customer”). These Terms govern Customer’s use of the Product and/or Provider’s provision of the Professional Services, as such terms are defined below (collectively, the “Services”). Additionally, Customer’s use of Provider’s website is governed by the Website Terms of Use (“Terms of Use”), which are incorporated into these Terms by reference. These Terms are effective on the earlier of the date that Customer first electronically consents to a version of these Terms and the date that Customer first accesses any Services (“Effective Date”). Any User accepting these Terms on behalf of an Organization represents and warrants they have the authority to bind such Organization to these Terms. Services under these Terms are not for consumer use.

Definitions. The following terms shall have these prescribed meanings for purposes of these Terms:

“Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a Party, where “control” means having more than fifty percent (50%) of the voting stock or other ownership interest.
“Applicable Data Protection Laws” means the Applicable Laws that govern how Provider and/or Skyway may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
“Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
“Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.
“Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with these Terms or the Services that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of these Terms and the information in any purchase contract, scope of work, or other ordering document that references these Terms (each, an “Order Form”). Customer’s Confidential Information includes, without limitation, non-public Customer Content and Outputs and Provider’s Confidential Information includes, without limitation, non-public information about, in, and that is a part of the Product.
“Customer Content” means all data, information, or materials that Customer or Users submit to the Product or otherwise provide or make available to Provider, or that Provider learns or collects, directly or indirectly, in connection with the Product or Provider’s provision of the Professional Services, but excludes Feedback.
“Deliverables” means documents, spreadsheets, reports, plans, and other materials that are prepared by or on behalf of Provider in the course of performing the Professional Services for Customer and are specifically labeled as “Deliverables” in the applicable Order Form or Provider’s Professional Services Catalog provided to Customer (“Professional Services Catalog”), which is incorporated into these Terms by reference.
“Discloser” means a Party to these Terms when the Party is providing or disclosing Confidential Information to the other Party.
“Documentation” means the usage manuals and instructional materials for Skyway and/or the Software that are made available by Provider to Customer.
“Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.
“Feedback” means suggestions, feedback, or comments about the Product, Professional Services, or related offerings from Customers or Users.
“Fees” means the amounts owed by Customer to Provider for the Services, as may be more specifically described in an Order Form.
“Force Majeure Event” means an unforeseen event outside a Party’s reasonable control where the affected Party took reasonable measures to avoid or mitigate the impacts of the event on their obligations under these Terms, including, without limitation, unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
“GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
“Indemnifying Party” means a Party to these Terms when the Party is providing protection for a particular Claim under Section 10 (Indemnification) of these Terms.
“Internal Use” means access or use solely for Customer’s and its Affiliates’ own internal business purposes. By way of example and not limitation, Internal Use does not include access or use: (a) for the benefit of any person or entity other than Customer or its Affiliates, or (b) in any event, for the development of any product or service. Internal Use is limited to access and use by Customer’s employees and contractors and, in either event, solely on Customer’s behalf and for Customer’s benefit.
“OFAC” means the United States Department of Treasury’s Office of Foreign Assets Control.
“Outputs” means reports, materials, data, and other outputs generated or produced by the Product and made available to Customer that are based on Customer Content.
“Personal Data” shall have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar terms.
“Product” means Skyway, the Software, and the Documentation, including all proprietary work and notices, analyses, systems, schemas, code, and other content, data, information, and materials therein (including without limitation all intellectual property rights therein and thereto).
“Professional Services” means the services provided by Provider to Customer as described in an applicable Order Form and the Professional Services Catalog.
“Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
“Protected Party” means a Party to these Terms when the Party is receiving the benefit of protection for a particular Claim under Section 10 (Indemnification) of these Terms.
“Recipient” means a Party to these Terms when the Party receives Confidential Information from the other Party.
“Skyway” means the cloud-based financial planning and analysis platform for cloud infrastructure developed and provided by Provider as a SaaS subscription.
“Software” means the client-side software or application(s) made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
“Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or a User’s use of the Product. Usage Data does not include Customer Content, Customer Confidential Information, or Outputs.
“User” means any individual who uses the Product on Customer’s behalf or through or associated with Customer’s account.

Skyway Subscription. If an Order Form includes a Skyway Subscription, the following applies to the Skyway Subscription in such Order Form:

Skyway Access and Use. During the subscription period set forth in the Order Form, including any renewal periods, if any (“Subscription Period”), Provider grants Customer a non-exclusive, non-transferable (except as expressly provided in Section 12.7 (Assignment)), non-sublicensable license to (a) access and use Skyway for Customer’s Internal Use; and (b) copy and use the included Software and Documentation only as needed to so access and use Skyway in each case.
Responsibility for Users. Use of the Product must comply with all Documentation and access rights provided by Provider. Customer is responsible and liable for all uses of the Product resulting from access provided to or requested by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Users, and any act or omission by a User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials related to Skyway or if they become compromised.
Restrictions on Customer. Except as expressly permitted by these Terms, Customer will not (and will not allow anyone else to): (a) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (b) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (c) remove any proprietary notices or labels; (d) copy, modify, or create derivative works of the Product; (e) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (f) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (g) use the Product to develop a competing service or product; (h) use the Product with any activity prohibited by Applicable Laws; (i) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (j) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights for such activities.
Reservation of Rights. Except for the limited license to use the Product in Section 2.1 (Skyway Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. All Feedback received or obtained by Provider shall be owned by Provider and may be used by Provider without any restriction or obligation.
Updates. Provider may provide updates to the Product to provide Customer with the functionalities and information that Customer desires. However, Provider has no obligation to develop or provide any updates or revisions to the Product, unless specifically agreed by the Parties in writing, and Provider reserves the right to alter or adjust performance specifications for the Product as it deems necessary or desirable, provided such alterations or adjustments do not materially diminish the capabilities or services of the Product as of the Effective Date. Customer is not entitled to separate products or new versions of the Product that Provider may from time to time introduce and market generally as a distinct licensed product or service, unless otherwise agreed by the Parties.
Third Party Users. Customer may only permit Users outside of its company or organization (i.e. Users that are not under Customer’s direct control) to access the Product with Provider’s express written consent, which Provider may withhold in its sole discretion or condition on such Users signing a non-disclosure agreement or other written agreement with Provider before such access is granted.
Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 60 days; (b) materially breaches these Terms; or (c) uses the Product in violation of these Terms or in a way that materially and negatively impacts the Product or others, then Provider may temporarily suspend Customer’s access to the Product with or without notice and without refund. However, Provider will make reasonable efforts to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if and when Customer resolves all outstanding issues.
Data Privacy. Provider shall collect, maintain, use, and process Personal Data in connection with the Product and Provider’s website in compliance with its Data Processing Agreement (“DPA”) and Privacy Policy (“Privacy Policy”), which are incorporated into these Terms by reference.
Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by an Order Form or in mutual written agreement of the Parties (email will suffice).
AI Services. The use of artificial intelligence and/or machine learning components by Provider and Customer in relation to the Product shall be governed by the terms of Provider’s AI Addendum, which is incorporated into these Terms by reference (“AI Addendum”).
Usage Data. Notwithstanding anything to the contrary in these Terms, Provider may collect and compile Usage Data. As between Provider and Customer, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Provider, and Customer agrees that Provider may use Usage Data to the extent and in any manner permitted under Applicable Law, including, without limitation, to compile statistical and performance information, to maintain, improve, enhance, and promote the Product and other Provider products and services, and for other development, diagnostic, and corrective purposes in connection with the Product and other Provider products and services, provided that such use does not publicly identify Customer or Customer’s Confidential Information. Nothing in this section will reduce or limit Provider’s obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws.

Professional Services. If an Order Form includes Professional Services, the following applies to the Professional Services in such Order Form:

Professional Services; Deliverables. During the term set forth in the applicable Order Form, Provider shall provide the Professional Services and corresponding Deliverables to Customer as set forth in the Order Form and the Professional Services Catalog. In the event of a conflict or difference between the terms in the Professional Services Catalog, an Order Form, and/or these Terms, the order of precedence is as follows as to the Professional Services provided under the applicable Order Form: (1) the Order Form, (2) these Terms, and (3) the Professional Services Catalog, except as expressly set forth in Section 5.2.4.
Reliance on Customer.
1. The Professional Services are based on Customer Content. Provider is not responsible for any deficiencies in the Professional Services or related losses or damages incurred by Customer arising from or related to any incorrect or incomplete Customer Content.
2. Customer undertakes that all documents, information, and data necessary for Provider to perform the Professional Services will be made available to Provider in a timely fashion. Customer will make available such employees of its organization as are necessary to assist Provider in providing the Professional Services. In case any of the above conditions are not timely complied with, or if Provider has to interrupt the Professional Services for reasons not attributable to Provider’s gross negligence or willful misconduct, the period of completion set forth in the Order Form shall be automatically extended for such additional time as shall be necessary to perform the Professional Services, and any and all additional costs resulting therefrom shall be the responsibility of Customer.
Client Ownership of Professional Services Deliverables. The Professional Services generally do not constitute “works for hire,” “works made in the course of duty,” or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. Instead, subject to Section 3.4 (Provider IP), Customer acknowledges that only the Deliverables, as specified in the applicable Order Form and/or Professional Services Catalog, are “works made for hire” as that term is used in the Copyright Law of the United States, and Provider agrees that Customer shall and will be the owner of all intellectual property rights in and to such Deliverables following receipt of full payment for the Professional Services resulting in such Deliverables by Provider.
Provider IP. As between Provider and Customer, Provider exclusively owns any and all software (including object and source code), flow charts, algorithms, documentation, information, report templates, know-how, inventions, techniques, models, trademarks, ideas, and any and all other works and materials developed by Provider in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto) (collectively, the “Provider IP”), other than the Deliverables, and that title shall remain with Provider. For the avoidance of doubt, the Provider IP does not include any Customer Confidential Information or Customer Content. Upon payment in full of the amounts due for the applicable Professional Services and to the extent any Provider IP is incorporated into the Deliverable(s), Customer shall have a perpetual, non-transferable (except as expressly provided in the Section 12.7 (Assignment)), non-exclusive license to use the Provider IP solely as a part of the Deliverable(s) for Customer’s Internal Use.

Fees; Payment.

Fees. As consideration for the obligations of Provider under these Terms and any Order Form, Customer will pay Provider the Fees set forth in the applicable Order Form, according to the terms and invoicing procedures set forth in the Order Form. Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars. Customer shall be responsible for any and all taxes levied on transactions under these Terms other than taxes on Provider’s income. Provider accepts payment via credit card, Automatic Clearing House (ACH), or wire transfers.
Late Payments. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, Provider may suspend Customer’s and its Users’ access to any portion or all of the Product and/or provision of the Professional Services until such amounts are paid in full or, at Provider’s option, terminate this Agreement and pursue collection of such overdue amounts, and Customer agrees to be responsible for Provider’s attorneys’ fees and other costs incurred in any such proceedings or efforts.

Term; Termination.

Term. These Terms start on the Effective Date and continue until terminated by either Party or automatically as permitted herein (“Term”). Each Order Form shall remain in effect until the first date on which no Professional Services or Skyway Subscription are being provided under the Order Form.
Termination.
1. Skyway Subscription Termination for Convenience. A Skyway Subscription may only be terminated for convenience at the end of the then-current Subscription Period (or during a Pilot Period, if applicable), as further set forth in the applicable Order Form.
2. Professional Services Termination for Convenience. The Professional Services set forth in any Order Form may be terminated by either Party upon at least thirty (30) days’ prior written Notice to the other Party.
3. Automatic Termination. Any Professional Services shall automatically terminate when the Completion Criteria is met or, when applicable, when the Retainer Term expires and no additional Retainer Hours are purchased (as such terms are defined in the Professional Services Catalog). A Skyway Subscription shall automatically terminate at the end of the Subscription Period.
4. Additional Termination Rights. In addition to all other termination rights in these Terms, either Party may terminate these Terms in the following instances, and such termination will automatically also terminate all active Order Forms (regardless of any conflicting terms in such Order Forms):
  1. if the other Party fails to cure a material breach of these Terms or an Order Form following 30 days’ written Notice from the non-breaching Party to the breaching Party;
  2. upon written Notice to the other Party if either Party (a) materially breaches these Terms or an Order Form in a manner that cannot be cured; (b) dissolves or stops conducting business without a successor; (c) makes an assignment for the benefit of creditors; or (d) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days; or
  3. upon written Notice to the other Party if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days and/or prevents Provider from providing the Professional Services to Customer for 30 or more consecutive days.
5. Notwithstanding anything to the contrary in these Terms, termination of these Terms does not excuse any of Customer’s payment obligations incurred prior to termination, subject to any refund rights set forth in Section 5.4 below.
Effect of Termination. Upon any expiration or termination of an Order Form or these Terms for any reason:
1. All rights of Customer to use the Product (if any) will immediately terminate;
2. Upon Customer’s request, Provider will delete Customer Content related to the terminated Order Form(s) and/or Terms within 60 days; and
3. Provider will submit a final bill or invoice for all outstanding Fees accrued before termination, if any, and Customer will pay the invoice according to the terms of these Terms.
Refunds Upon Early Termination.
1. In the event that an Order Form is terminated before completion of all of the ordered Professional Services and/or the current Subscription Period because Provider terminated due to convenience, because Provider breached and did not cure such breach, or because Provider is the party undergoing any of the events in Section 5.2.4.2 of these Terms, then, as applicable to such Order Form, (a) for any incomplete Professional Services billed on a fixed fee basis, the Provider shall refund any amounts paid by Customer for such Professional Services prior to termination of the Order Form, and for any Professional Services billed on a monthly recurring basis or retainer basis the Provider shall refund any amounts paid by Customer for Professional Services not performed prior to termination of the Order Form; and (b) Provider shall refund a pro rata portion of the Skyway Fees related to the remaining portion of the Subscription Period.
2. In the event that an Order Form is terminated before completion of all of the ordered Professional Services and/or the current Subscription Period because Customer breached and did not cure such breach, or because Customer is the Party undergoing any of the events in Section 5.2.4.2 of these Terms, then no refunds will be given and any amounts owed prior to termination (including any minimum billing cycles required) shall be due in full.
Survival.
1. The following sections will survive expiration or termination of these Terms: Section 1 (Definitions), Section 2.4 (Reservation of Rights), Section 2.10 (AI Services), Section 2.11 (Usage Data), Section 3.4 (Client Ownership of Professional Services Deliverables), Section 3.4 (Provider IP), Section 4.1 (Fees) for Fees accrued or payable before expiration or termination, Section 5.3 (Effect of Termination), this Section 5.5 (Survival), Section 6 (Customer Information), Section 7 (Representations & Warranties), Section 8 (Disclaimers), Section 9 (Limitation of Liability), Section 10 (Indemnification), Section 11 (Confidentiality), and Section 12 (General Terms).
2. Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 11 (Confidentiality) will continue to apply to retained Confidential Information.

Customer Information.

Customer Content. As between the Parties, Customer owns all Customer Content.
Provider’s Use of Customer Content. Customer acknowledges and agrees that Provider’s access to and use of Customer Content and similar content from Provider’s other customers is an integral and necessary part of Provider’s provision of the Product and Professional Services to Customer and Provider’s other customers. Therefore, Customer grants Provider a non-exclusive, perpetual, irrevocable (other than for Provider’s uncured breach), fully paid-up right and license to access, reproduce, create derivative works, distribute, collect, retain, save, and use the Customer Content solely for the purposes of providing the Product and Professional Services to Customer and providing similar products and services to Provider’s other customers; improving the Product, the Professional Services, and Provider’s other products and services; and to otherwise fulfill its obligations and exercise its rights under these Terms; provided, however, that Customer Content will be anonymized, de-identified, and/or aggregated when used by Provider for any purpose other than to provide the Product and/or Professional Services to Customer or otherwise fulfilling Provider’s obligations or exercising Provider’s rights under these Terms. Anonymized, de-identified, and/or aggregated Customer Content combined with other content shall be derivative works created and owned exclusively by Provider.

Representations & Warranties.

Mutual. Each Party represents and warrants that: (a) it has the legal power and authority to enter into these Terms; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; and (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in these Terms.
From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content to the Product and/or otherwise to Provider, such as for the Professional Services, each have and will continue to have all rights necessary to submit or make available such Customer Content and to allow the use of Customer Content as described in these Terms, the applicable Order Form, and/or by Provider at the time of the request.
From Provider. Provider represents and warrants that: (a) it will not materially reduce the general functionality of Skyway during the Subscription Period; and (b) Provider shall have all necessary rights, title, and interest in and to the Product, Outputs, and/or the Deliverables sufficient for Provider to grant the intellectual property rights provided in these Terms.
Provider Product Warranty Remedy. If Provider breaches the warranty in Section 7.3(a) (Representations & Warranties from Provider), Customer must give Provider Notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of Skyway. If Provider cannot resolve the issue, Customer may terminate the applicable Order Form and Provider will pay to Customer a prorated refund of prepaid Skyway Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranty in Section 7.3(a) (Representations & Warranties from Provider).

Disclaimers.

Not Legal Advice; No Guarantees. CUSTOMER UNDERSTANDS AND AGREES THAT THE INFORMATION, CONTENT, DATA, RESULTS, AND/OR MATERIALS OBTAINED FROM OR PROVIDED BY THE PRODUCT OR PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, OUTPUTS, (A) ARE NOT LEGAL ADVICE AND MAY NOT BE RELIED ON FOR LEGAL PURPOSES OR REGULATORY COMPLIANCE; (B) ARE FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED ON FOR PHYSICAL ENGINEERING, ARCHITECTURAL, CONSTRUCTION, OR OTHER TANGIBLE (AS OPPOSED TO DIGITAL) TECHNICAL PURPOSES; AND (C) DO NOT GUARANTEE AN OUTCOME OR RESULT, INCLUDING BUT NOT LIMITED TO, REDUCED COSTS, RELEASE OF A PRODUCT, OR CUSTOMER SATISFACTION. FURTHER, PROVIDER MAKES NO GUARANTEES THAT THE PRODUCT WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL LEGAL, FINANCIAL, AND REGULATORY COMPLIANCE AND DECISIONMAKING RELATED TO ITS BUSINESS ACTIVITIES AND FOR VERIFYING ALL INFORMATION RECEIVED FROM THE PRODUCT AND PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, OUTPUTS, AND PROVIDER TAKES ON NO RESPONSIBILITY OR LIABILITY RELATED TO ANY OF THE FOREGOING AS A RESULT OF PROVIDING THE PRODUCT OR PROFESSIONAL SERVICES.
Responsibilities of Customer. Customer is responsible for the accuracy and content of Customer Content. While Provider may assist Customer in negotiations with third parties, all decisions and obligations related to the negotiations and outcomes thereof are solely the responsibility of Customer, not Provider, including, without limitation, reviewing all legal, financial, and business terms of any contract with Customer’s legal and financial advisors and complying with all contractual obligations. Provider has no obligations to any third parties other than Customer as a result of these Terms.
Disclaimer of Warranties. ALL SERVICES AND WORK PRODUCT OF ANY SORT HEREUNDER, INCLUDING, WITHOUT LIMITATION, OUTPUTS AND DELIVERABLES, SHALL BE PROVIDED OR DELIVERED ON AN “AS-IS” BASIS. EXCEPT FOR THE WARRANTIES IN SECTION 7 (REPRESENTATIONS & WARRANTIES), ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY CONDITIONS, REPRESENTATIONS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY LAW. THE WARRANTIES IN SECTION 7 (REPRESENTATIONS & WARRANTIES) DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PRODUCT OR OUTPUTS, NOR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN PROVIDER. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

Limitation of Liability.

Liability Cap. Except as provided in Section 9.3 (Exceptions), each Party’s total cumulative liability for all claims arising out of or relating to these Terms will not be more than the total amount of all Fees paid to Provider under these Terms in the 12-month period immediately preceding a claim.
Damages Waiver. Except as provided in Section 9.3 (Exceptions), under no circumstances will either Party be liable to the other for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, contractual obligations to third parties, or liabilities to third parties arising from any source, even if the Party from whom such damages are sought has been advised of the possibility of such damages.
Exceptions. The liability cap in Section 9.1 does not apply to Section 10 (Indemnification), any breach of Section 11 (Confidentiality), or any claim arising from a Party’s gross negligence or willful misconduct. Nothing in these Terms will limit, exclude, or restrict a Party’s liability to the extent prohibited by Applicable Laws.

Indemnification.

Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all losses, liabilities, damages, claims, and expenses, including reasonable attorneys’ fees and court costs (each, a “Claim”, and collectively, “Claims”), that arise from any third party (so not Customer, Customer’s Affiliates, or any User) action, proceeding, or claim that the Product or any Deliverables, when used by Customer according to the terms of these Terms, including the applicable Order Form, violates, misappropriates, or otherwise infringes upon any third party’s intellectual property or other proprietary rights.
Protection by Customer. Customer will indemnify, defend, and hold harmless Provider, and its officers, directors, shareholders, employees, contractors, representatives, and agents, from and against all Claims that arise from any third party (so not Provider or Provider’s Affiliates) action, proceeding, or claim that (a) the Customer Content, when used according to these Terms or any Order Form, violates, misappropriates, or otherwise infringes upon any third party’s intellectual property or other proprietary rights, or (b) results from Customer’s or any of its Users’ breach or alleged breach of these Terms, including any Order Form, or use of the Product, including, without limitation, Users who are not part of Customer’s organization or company.
Procedure. The Indemnifying Party’s obligations in this Section 10 are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Claim. A Protected Party may participate in a Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Claim under Section 10.1 (Protection by Provider), Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.
Exclusions.
1. Provider’s obligations as an Indemnifying Party will not apply to any Claims that result from: (a) modifications to the Product made by Customer or Outputs; (b) unauthorized use of the Product, including use in violation of these Terms; (c) the combination of the Services or Outputs with technology or content not provided by Provider; (d) Customer Content; (e) use of the Services or Outputs in a manner that Customer knows or reasonably should know violates or infringes the rights of others; or (f) use of an old version of the Product or failure to use updates to the Product provided by Provider where a newer release or update would avoid the Claim.
2. Customer’s obligations as an Indemnifying Party will not apply to Claims that result from Provider’s unauthorized use of the Customer Content, including use in violation of these Terms.
Exclusive Remedy. This Section 10 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Claim covered by this Section 10 (Indemnification).

Confidentiality.

Non-Use and Non-Disclosure. Except as otherwise authorized in these Terms or as needed to fulfill its obligations or exercise its rights under these Terms , Recipient will not (a) use Discloser’s Confidential Information; or (b) intentionally disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance Notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 11 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of these Terms, including, without limitation, this Section 11 (Confidentiality).

General Terms.

Entire Agreement. These Terms (including the Website Terms of Use, AI Addendum, DPA, Privacy Policy, Order Forms, and other documents or terms that are incorporated by reference into these Terms) constitute the Parties’ entire understanding as to the Services’ provision and use, and supersede all prior negotiations, understandings, and agreements, between the Parties concerning the Product and/or Professional Services, to the extent ordered by Customer with an Order Form subject to these Terms. Notwithstanding the foregoing, in the event that Provider and Customer negotiate and execute a Master Agreement or other similar agreement concerning the Product and/or Professional Services (“Negotiated Agreement”) that is effective during the term of these Terms, such Negotiated Agreement will override and supersede these Terms as to the Product and/or Professional Services provided under such Negotiated Agreement, unless expressly agreed by Provider in writing. No terms or conditions in any Customer documentation or online vendor portal will apply to the Services unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say. For any instances other than as set forth in Section 3.1 above, in the event of a conflict between these Terms and an Order Form, the terms of the Order Form shall control as to that particular Order Form only, except as expressly set forth in the DPA and Section 5.2.4 of these Terms.
Modifications, Severability, and Waiver. Provider may update these Terms at any time by posting revised terms at https://www.duckbillhq.com/terms/commercial-terms/, to be effective 30 days after the updates are posted by Provider or Customer otherwise receives written Notice, except that updates made in response to changes to law or regulation take effect immediately upon posting or Notice. Changes will not apply retroactively. No other amendment to or modification of these Terms is effective unless it is in writing and signed by both Parties. If any term of these Term sis determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of these Terms will remain in full force and effect. The failure of a Party to enforce a term or to exercise an option or right in these Terms will not constitute a waiver by that Party of the term, option, or right.
Governing Law and Chosen Courts. California law will govern all interpretations and disputes about these Terms, without regard to its conflict of laws provisions. The Parties will bring any legal suit, action, or proceeding about these Terms in the courts in the City and County of San Francisco and each Party irrevocably submits to the exclusive jurisdiction of the courts in the City and County of San Francisco. In any action or proceeding related to these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
Injunctive Relief. Despite Section 12.4 (Governing Law and Chosen Courts), a breach of Section 11 (Confidentiality) or the violation of a Party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 11 (Confidentiality) or violation of a Party’s intellectual property rights, the non-breaching or non-violating Party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
Non-Exhaustive Remedies. Except where these Terms provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a Party.
Assignment. Neither Party may transfer, license, or assign any rights or obligations under these Terms without the prior written consent of the other Party. However, either Party may assign these Terms upon Notice to the other Party if such Party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which these Terms relate. Any attempted but non-permitted assignment is void. These Terms will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
Publicity Rights. Provided that Customer gives its prior written consent, Provider may identify Customer and use Customer’s name and logo in marketing to identify Customer as a user of Provider’s products and services, provider Customer may opt out by emailing [email protected] with the request.
Notices. All notices, demands, waivers, and other communications under these Terms (each, a “Notice”) must be in writing. Except for notices related to demands to arbitrate or where equitable relief is sought, any Notices provided under these Terms may be delivered electronically to the email address provided to Provider if to Customer; and to [email protected] if to Provider. Notice is effective only: (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with all requirements of this Section 12.9.
Beta Products or Pilot Periods. If Provider gives Customer access to a Beta Product or the Product during a trial period (“Pilot Period”), the Beta Product, or the Product accessed during the Pilot Period, is provided “AS IS” and Sections 7.3 (Representations & Warranty From Provider) and 10.1 (Protections by Provider) do not apply to any Beta Products or Pilot Periods. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider’s discretion with or without notice.
Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers. Neither Party is authorized to bind the other to any liability or obligation.
No Third-Party Beneficiary. There are no third-party beneficiaries of these Terms.
Force Majeure. Neither Party will be liable for a delay or failure to perform its obligations of these Terms if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.
Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; or (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate these Terms immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.
Anti-Bribery. Neither Party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to these Terms.