Decidr Masters AI Services Agreement

This AI Services Agreement, including any Orders and SOWs, (“Agreement”) governs the Client’s use of Decidr’s Services. The Agreement is between Decidr.ai Pty Ltd DECIDR.AI PTY LTD (ABN 99 673 841 284) care of Suite 1, Level 20, 347 Kent Street, Sydney in the State of New South Wales, Australia and the client contracting entity set out in the Order or SOW (“Client”). Decidr and Client may also be referred to individually as “Party” or together as the “Parties.” Capitalized terms used but not otherwise defined in this Agreement have the respective meanings designated in Clause 12. The Parties agree as follows:

PROVISION OF SERVICES
1. Access to Subscription Services. Subject to Client’s compliance with this Agreement, including timely payment of applicable Fees, Decidr will make the Subscription Services available to Client during the Subscription Term for Client’s internal business use in accordance with the Usage Metrics purchased by Client, via the Subscription Services Platform. Where the Order sets out any requirements for Professional Services and/or acceptance testing of the Subscription Services (or testing of any other Professional Services), the parties will cooperate and use reasonable commercial endeavours to complete the acceptance testing in accordance with the process set out in the Order. Client acknowledges that Decidr or its Affiliates may review Client’s use of the Subscription Services for the purpose of providing Services and verifying Client’s compliance with this Agreement. Client agrees that its purchase and use of the Subscription Services are not contingent on any future functionality or features, or dependent on any oral or written statements made by Decidr or any of its Affiliates regarding future functionality or features.
2. Protection of Client Data. Decidr will maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Client Data hosted or processed by Decidr, as required by law. Where Client’s use of the Services includes the processing of Personal Data by Decidr (as defined in the DPA) subject to applicable data protection laws, such use will be governed by the DPA (as defined in the Order), which is incorporated into this Agreement by reference. Client will only provide to Decidr the minimum amount of personal data necessary to enable Client to use the Services in accordance with this Agreement.
3. Beta Services. From time to time, Decidr may invite Client and Authorised Users to participate in a program regarding certain pre-release or beta services (collectively, “Beta Services”). Client may accept or decline to participate in any Beta Services. Any services designated by Decidr as Beta Services (e.g., “beta,” “pilot,” “limited release,” “developer preview,” “non-production evaluation,” or other similar designation) are solely for Client’s evaluation purposes. If Client opts into a Beta Service, Client agrees to participate in usage and other testing and provide feedback about such Beta Service, as reasonably requested by Decidr. Beta Services are not considered Services under this Agreement, are not supported, and may be subject to additional program terms. Unless otherwise stated, any Beta Service evaluation period will expire upon the earlier of one (1) year from the evaluation start date and the date of such Beta Service’s commercial release, unless such Beta Service is earlier discontinued by Decidr. Decidr may discontinue any Beta Service at any time and may never make such Beta Service generally available. Beta Services are provided “as is,” without express or implied warranty, and without indemnity. Decidr and its Affiliates will have no liability for, and Client hereby fully and irrevocably releases Decidr and its Affiliates from, any liability or damage arising out of or in connection with any Beta Service.
4. Evolving Decidr Technology. Subject to Clause 7.2(b), Decidr may issue Updates for the Services during the Subscription Term.
USE OF SERVICES
1. Client’s Responsibilities. Only Authorised Users are permitted to access and use the Services. Client acknowledges that Decidr and its Affiliates may directly or indirectly contact Client and Authorised Users in connection with Decidr’s and its Affiliates’ services. Client will be solely responsible for (a) Authorised Users’ compliance with this Agreement and any Order(s) issued hereunder; (b) the accuracy and quality of Client Data, the means by which Client acquired Client Data, and obtaining appropriate usage rights with respect to Client Data; (c) maintaining the confidentiality of usernames, passwords, and other account information or access credentials (as applicable); (d) all activities that occur under its Authorised Users’ usernames, passwords, accounts or access credentials as a result of Authorised Users’ access to the Services; (e) ensuring Authorised Users’ use the Services only in accordance with the Documentation. Client will follow all requirements under applicable law, which may include providing notice and disclosures to Authorised Users and/or Data Subjects that Client Personal Data (as defined in the DPA) is subject to Client’s own privacy policy and other terms regarding the use or handling of Client Personal Data as required by applicable Data Protection Law. Client will notify Decidr promptly upon learning of any unauthorised use of, or access to, the Services.; and (f) Client is solely responsible for all use of the Output and evaluating the Output for accuracy and appropriateness for its use cases, including by utilising human review as appropriate.
2. Restrictions. Client will not and will not permit others to (a) make any Services available to any third party other than Client or Authorised Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or include any Services in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing, tortious, libelous, or otherwise unlawful material, Harmful Code, or material that otherwise violates the rights of any third-party; (d) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (e) use, or permit direct or indirect access to, the Services in a way that seeks to circumvent the Usage Metrics, (f) use the Services to exploit any Decidr Intellectual Property Rights except as otherwise expressly permitted under this Agreement, an Order, or the Documentation; (g) frame or mirror any part of the Services, except as permitted by and in accordance with the Documentation; (h) access the Services in order to develop a competitive product or service or benchmark with a non-Decidr product or service, or to otherwise exploit for competitive purposes; (i) subject to applicable law, reverse engineer, copy, or modify any software included as part of the Services; (j) use the Services for any improper, fraudulent, or other non-legitimate business purpose; (k) use the Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory, bigoted, hateful, indecent, or otherwise objectionable in Decidr’s reasonable discretion; (l) use the Services to send unsolicited communications, promotions, or advertisements in violation of any applicable anti-spam or e-privacy law, rule, or regulation; (m) use any automated device or process, such as a robot, spider, datamining, web-scraping, or other means to circumvent, access, use, or integrate with the Services or its contents, including but not limited to other user account information; or (n) use the Service in violation of applicable law.
THIRD-PARTY APPLICATIONS
1. Products or services developed by third parties may be available to Client, including via Decidr’s API, for use with the Services (“Third-Party Applications”). By using Third-Party Applications, Client permits Decidr to grant providers of such Third-Party Applications access to Client Data or other data as required for the use and support of such Third-Party Applications in conjunction with the Subscription Services. Third-Party Applications are not Services under this Agreement, may be subject to the third-party provider’s additional terms, and may require an additional fee to such providers in order to use the Third-Party Applications. The Decidr software may contain features designed to interoperate with Third-Party Applications. Such features are not considered Services under this Agreement. Decidr may cease providing such features for any reason, including if the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the Services, without entitling Client to any refund, credit, or compensation. Notwithstanding any obligations Decidr may have under an applicable DPA, Decidr is not responsible for the use or protection of Client Data in any Third-Party Applications.
FEES AND PAYMENT
1. Fees. Client will pay Decidr all fees as set out in the applicable Order or SOW, as well as any Overages (“Fees”). Except as set out in this Agreement, all payment obligations are non-cancelable and Fees paid are non-refundable.
2. Payment Terms. Except as otherwise set out in the applicable Order, all Fees will be billed monthly in advance (unless otherwise specified) and, after the first Subscription Term, will increase each year by the greater of the total increase in CPI during the immediately preceding year or 3.5%. All invoices for Fees, Taxes, and Overages are due and payable within the time frame and in the currency set out in the applicable Order, without deduction or setoff. Interest on unpaid amounts will accrue from the applicable invoice’s due date at the higher of 1.5% per month and the highest rate allowed by applicable law. Client is responsible for providing complete and accurate billing and contact information to Decidr and promptly notifying Decidr of any changes to such information. If Client fails to pay any undisputed portion of a past due invoice, including accrued interest, within ten (10) business days after receiving notice that its account is overdue, Decidr may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full (“Non-Payment Suspension”). Decidr is not obliged to continue to provide Services without payment of applicable Fees.
3. Use of Purchase Orders. No terms of any purchase order or other form or agreement provided by Client will modify or supplement this Agreement, regardless of any failure of Decidr to object to such terms, and any such terms will have no force or effect.
4. Taxes. Fees and Overages do not include any taxes, tariffs, levies, duties, or similar governmental charges or assessments of any nature, including, goods and services or value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Unless Client provides Decidr with a valid tax-exemption certificate, Client is responsible for paying all Taxes associated with its purchases under this Agreement. If Decidr is legally required to pay or collect Taxes for which Client is responsible under this Clause, Decidr will invoice Client and Client will pay such amounts, unless Client provides Decidr with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Decidr is solely responsible for taxes assessable against it based on its own income, property, and employees. Unless prohibited by the applicable taxing jurisdiction, the tax situs will be Client’s ship-to address as set out in the applicable Order.
5. Usage Verification & Subscription Review. At any time, Decidr’s subscription management team may initiate a review of the Client’s use of the Subscription Services. This may include c reviewing evidence of Client’s compliance with any Usage Metrics. Client will reasonably cooperate with and assist Decidr or its Affiliates, as applicable, in such review and verification of Client’s use of the Services. Decidr may invoice Client, and Client will pay, for any usage of the Subscription Services that exceeds the Usage Metrics (“Overages”). Overages will be invoiced at Decidr’s standard rates (without discount) at the time of invoicing.
PROPRIETARY RIGHTS AND LICENSE
1. Ownership, Reservation of Rights. All Decidr Intellectual Property Rights, including Intellectual Property Rights in the Services, Beta Services, Documentation, Statistical Usage Data, and Decidr’s Confidential Information, are and will remain owned exclusively by Decidr and its Affiliates, as applicable. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of Decidr, as well as recommendations, suggestions, proposals, ideas, improvements, or other feedback, will immediately vest in Decidr upon creation or communication to Decidr, as applicable. Unless otherwise specified in an applicable SOW, all deliverables provided in the performance of Professional Services are owned by Decidr and will be made available as part of the Subscription Services provided under this Agreement. Nothing in this Agreement will preclude or limit Decidr from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set out in this Agreement, no license or other rights in or to the Services or other Decidr Intellectual Property Rights are granted to Client, and all such rights are expressly reserved to Decidr and its Affiliates.
2. Use of Decidr Logos. Use of Decidr’s logos, and all other Decidr trade marks, service marks, product names, and trade names of Decidr, is subject to the Decidr trade mark usage guidelines notified to the Client from time to time.
3. Client Data. Client Data and Client’s Confidential Information are and will remain owned exclusively by Client or its Authorised Users, as applicable. Client hereby grants Decidr, its Affiliates, and its subprocessors a worldwide right and license to access, host, display, process, analyze, transmit, reproduce, and otherwise utilize Client Data (subject to Clauses 1.3 and 6.2) for the purposes of providing and improving the Services in accordance with this Agreement. Client acknowledges that due to the nature of the Services and artificial intelligence generally, Output may not be unique and other users may receive similar content from Decidr’s services. Responses and output that are requested by and generated for other users are not considered the Client’s Output and Client’s ownership of Output does not extend to other user’s output or any content delivered as part of any third party offering.
4. Statistical Usage Data. Decidr and its Affiliates may collect, use, and otherwise process Statistical Usage Data for their own analysis, analytics, marketing, and other internal business purposes, including, without limitation, sharing with subprocessors for the purpose of improving Decidr’s products and services. Except where Client has expressly provided its written consent, Decidr will otherwise only disclose Statistical Usage Data if such data is (a) aggregated or anonymized; and (b) does not disclose the identity of Client or its Authorised Users or any Client Confidential Information.
CONFIDENTIALITY
1. Definition of Confidential Information. “Confidential Information” means all information or data disclosed by a Party or any of its Affiliates (as applicable, the “Disclosing Party”) that is confidential, proprietary, or otherwise not publicly available, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure whether oral or in writing, and disclosed during the Term in connection with the Services. Confidential Information includes, (a) with respect to Client, Client Data; (b) with respect to Decidr, the Services, pricing, and the Beta Services, including any discussions or information related to Beta Services; and (c) with respect to a Party, any technical, financial, economic, marketing, strategic, business, product, design, or operational information, including the terms of this Agreement and all Orders and SOWs, of such Party. Confidential Information does not include any information that (w) is or becomes generally known to the public without breach of this Agreement or any other agreement by the Party receiving information or any of its Affiliates (as applicable, the “Receiving Party”); (x) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (y) is received from a third party without restriction on disclosure and without breach of any obligation owed to the Disclosing Party; or (z) was independently developed by the Receiving Party without use of or reference to any Confidential Information.
2. Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise expressly consented to by an Authorised representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those in this Agreement (“Authorised Recipients”). Neither Party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel, and accountants without the other Party’s prior written consent, on condition that a Party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, accountants’, and Authorised Recipients’ compliance with this “Confidentiality” Clause.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law or legal process to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS
1. General Warranty. Each Party represents and warrants that it has the necessary rights to enter into this Agreement and has the legal power to do so.
2. Decidr Limited Warranties. Decidr warrants that (a) the Subscription Services will perform materially in accordance with the applicable Documentation; (b) Decidr will not materially reduce the core functionality of the Subscription Services during the current Subscription Term; (c) Decidr will use industry standard measures to deliver the Subscription Services free of Harmful Code; and (d) Decidr will perform the Professional Services in a diligent and professional manner. Client’s exclusive remedy and Decidr’s entire liability for a breach of the above warranties will be, at Decidr’s option, (x) the correction of the deficient Service that caused the breach of warranty, or (y) provision of comparable functionality. If Decidr, as determined in its reasonable discretion, cannot accomplish (x) or (y) Decidr will terminate the deficient service and refund to Client any prepaid Fees for the terminated Service, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.
3. Disclaimers. Except as expressly provided in this Agreement, neither Party or its licensors makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each Party and its licensors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement, to the maximum extent permitted by applicable law. Decidr does not warrant that Services will be error-free or uninterrupted, will meet Client’s requirements or expectations, or that its security measures will be sufficient to prevent third-party access to Client Data. Decidr does not warrant that the Client will obtain any particular results from the use of the Subscription Service or that any produced results will be accurate. Client (and any third person that the Client authorises to use the results) relies on and uses the results of the Service at its own risk and Decidr will have no liability to the Client (or any third party) in this respect.
INDEMNIFICATION
1. Indemnification by Decidr.
  1. Decidr will defend any claim brought against Client by a third-party to the extent such claim alleges that Client’s use of the Subscription Services (as Authorised in this Agreement, and as provided by Decidr to Client) (1) infringes any valid and enforceable third-party patent, copyright, or registered trademark, or (2) misappropriates a third-party trade secret (a “Claim”). If a third party makes a Claim against Client, Decidr will pay all damages (including reasonable attorneys’ fees) finally awarded against Client by a court of competent jurisdiction, or the settlement agreed to by Decidr with respect to such Claim.
  2. If any Claim is brought or threatened, or if Decidr reasonably believes that the Subscription Services may become the subject of a Claim, Decidr may, at its sole option and expense (1) procure for Client the right to continue to use the applicable Subscription Service; (2) modify the Subscription Service to make it non-infringing; (3) replace the affected aspect of the Subscription Service with non-infringing technology having substantially similar capabilities; or (4) if Decidr determines none of the foregoing is commercially practicable, terminate this Agreement upon thirty (30) days’ notice and refund Client any prepaid Fees related to the applicable Subscription Services prorated for the remainder of the Subscription Term.
  3. Decidr’s defense and indemnity obligations do not apply to, and Decidr will have no liability with respect to, any Claim arising in whole or part due to (1) any modification of the Subscription Services made by anyone other than Decidr, (2) any use of the Subscription Services in combination with software, products, or services not provided by Decidr, (3) any Third-Party Applications; (4) Services under an Order for which there is no charge; (5) Client’s use of the Subscription Services not in compliance with this Agreement; or (6) Client’s failure to use any Update provided by Decidr.
  4. This indemnity states Decidr’s entire liability, and Client’s exclusive remedy, for any Claims as described in Clause 8.1.
2. Indemnification by Client. Client will defend any claim or regulatory action brought against Decidr by a third party to the extent such claim relates to the Client Data (if used by Decidr in accordance with this Agreement) or Third-Party Applications built by or on behalf of Client. If a third party makes such a claim against Decidr, Client will pay all damages (including reasonable attorneys’ fees) finally awarded against Decidr or the settlement agreed to by Client with respect to such claim. This indemnity states Client’s entire liability, and Decidr’s exclusive remedy, for any third-party claims as described in this Clause 8.2.
3. Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt notice; (b) sole control over the defense and any settlement negotiations; and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of the indemnifiable claim. The indemnifying Party will not agree to a settlement that imposes any obligation or liability on the indemnified Party without the indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.
LIMITATION OF LIABILITY
1. Exclusion of Damages. To the extent arising out of or related to this Agreement, neither Party nor its respective Affiliates will be liable for any loss of profits, revenues, goodwill, anticipated savings, or use, costs of substitute goods or services, or business interruption, or work stoppage, or any indirect, special, incidental, exemplary, punitive, or consequential damages, however caused, and based on any theory of liability, whether for breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if such Party is advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
2. Limitation of Liability. A Party’s and its respective Affiliates’ aggregate cumulative liability for all damages arising out of or related to this Agreement will not exceed the applicable Fees paid or payable to Decidr in an Order or SOW for the applicable Services and attributable to the twelve (12) month period immediately preceding the event giving rise to the liability. The existence of more than one claim will not expand this limit. The liability limitations under this Clause 9.2 will not apply to (a) Client’s obligations to pay Fees due under this Agreement; (b) Client’s breach of Clauses 2.1 or 2.2; (c) amounts finally determined pursuant to either Party’s indemnity obligations under Clause 8; (d) either Party’s gross negligence, willful misconduct, or fraud; or (e) either Party’s negligence on-site during the performance of Professional Services that results in death or personal injury. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.
TERM AND TERMINATION
1. Term of Agreement. This Agreement will begin on the Effective Date and continue until terminated as permitted in this Agreement (the “Term”). If there are no active Orders, this Agreement will automatically terminate after ninety (90) days.
2. Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will begin and end in accordance with the start date and end date set out in the Order. Unless otherwise specified in an Order, a Subscription Term will automatically renew for one (1) year, unless either Party gives the other Party notice (email is sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Notice of non-renewal to Decidr must be sent to autorenewals@Decidr.com. Any new Service subsequently added to an existing subscription will be coterminous with the current Subscription Term.
3. Suspension. In the event of Client’s or an Authorised User’s breach of this Agreement, including without limitation for Non-Payment Suspension or violation of the restrictions in Clause 2.2, Decidr may, in its reasonable discretion, suspend Client’s or an Authorised User’s access to or use of the Subscription Services. Notwithstanding the foregoing, Decidr will use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Client and the Authorised User via email before taking the foregoing actions.
4. Termination. Either Party may terminate this Agreement or any Order or SOW upon notice if the other Party is in material breach of this Agreement, where such material breach is not cured (to the extent capable of being cured) within thirty (30) days after receiving notice of breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt and without limiting Decidr’s rights, Client’s noncompliance with Clause 2.2 or Clause 4.2 will be deemed a material breach of this Agreement. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.
5. Effect of Termination. Upon the termination of this Agreement for any reason (a) unless otherwise agreed by the Parties in writing, all outstanding Orders and access to the Subscription Services will automatically terminate; (b) Client and its Authorised Users will immediately cease access and use of the Subscription Services, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations of Client will become due and payable immediately; and (d) for thirty (30) days following the expiration of the final Subscription Term, Decidr will make Client Data available to Client, at Client’s request, via read-only access to the Subscription Service, solely for purpose of allowing Client to retrieve Client Data. After thirty (30) days, Decidr will have no obligation to maintain or provide any Client Data, and thereafter may delete or destroy all copies of Client Data. If Decidr is required to retain a copy of Client Data for legal purposes, such copy remains subject to the confidentiality provisions of this Agreement.
6. Refund or Payment upon Termination. If Client terminates this Agreement due to Decidr’s material breach, Decidr will refund Client the prorated portion of prepaid Fees for unused Services. If Decidr terminates this Agreement due to Client’s material breach, Client will pay any unpaid Fees. Termination will not relieve Client of its obligation to pay any Fees for the period prior to the date of termination.
7. Surviving Provisions. The Clauses titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representation, Warranties, Exclusive Remedies, Disclaimers,” “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” (with the exception of 11.1(a)) will survive any termination of this Agreement.
GENERAL PROVISIONS
1. Publicity. Client grants Decidr the right to use Client’s company name and logo as a reference for promotional purposes, subject to Client’s trademark usage guidelines that are provided to Decidr. Client may revoke this grant at any time, in part or in whole, by sending an email stating its intent to Decidr.
2. Export Control. Each Party will comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Services. Without limiting the foregoing, (a) each Party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to jurisdiction of U.S. Export Controls (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Client will not, and will ensure that Authorised Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c) Client will not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
3. Anti-Corruption. Neither Party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.
4. Contracting Entity, Governing Law & Venue. The laws of the State of New South Wales, Australia that will apply to a dispute arising out of or relating to this Agreement, and jurisdiction for dispute resolution will be the Courts of New South Wales, Australia, in all cases without reference to conflict of law rules of any jurisdiction. The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to this Agreement in any manner whatsoever.
5. Dispute Resolution. The Parties will attempt in good faith to promptly resolve any disputes arising out of or relating to this Agreement by negotiation between representatives of each Party with the authority to resolve such dispute. If the Parties are unsuccessful, such dispute will be submitted to final and binding arbitration. Notwithstanding the foregoing, neither Party is required to arbitrate claims (a) where all named parties seek monetary relief which, in the aggregate, qualifies as a claim that meets the requirements of an applicable small claims court; or (b) seeking injunctive relief. However, if a small claim is transferred, removed, or appealed to a different court, either Party may require that the claim be submitted to final binding arbitration. Any arbitration will take place on an individual basis. The Parties waive the right to participate in a class, consolidated, or representative action or arbitration, and the right to a trial by jury. If this class action waiver is deemed unenforceable, the class claim will be brought in a court of competent jurisdiction. Arbitration will be conducted in English and administered in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution at the location set out in Clause 11.4. Except as required by law, neither Party nor its representatives may disclose the existence, content, or results of any arbitration without the other Party’s prior written consent. The arbitrator is not empowered to award damages in excess of compensatory damages and each Party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. The decision of the arbitrator will be in accordance with this Agreement and will be binding upon the Parties. Each Party hereby waives any right it may otherwise have under the laws of any jurisdiction to any form of appeal. Judgment upon the award rendered may be entered in and enforced by any court of competent jurisdiction having jurisdiction over both Parties. This Agreement governs if there is a conflict with the International Arbitration Rules of the International Centre for Dispute Resolution.
6. Notices. Notices to Client will be delivered via email or overnight delivery at the address associated with the Order. Notices to Decidr will be delivered via email to compliance@decidr.ai or by overnight delivery to Decidr.AI Pty Ltd, Attention Chief of Staff. All notices must be in writing and will be effective when received.
7. Force Majeure. Neither Party will be responsible or liable for any failure or delay in its performance under this Agreement (except for payment of Fees, which may be delayed but not excused) to the extent due to any cause beyond its reasonable control (“Force Majeure Event”). The Party suffering a Force Majeure Event will use reasonable efforts to mitigate against the effects of such Force Majeure Event For the avoidance of doubt, issues relating to COVID-19 will not be considered a Force Majeure Event.
8. Assignment. Each Party will not assign this Agreement, in whole or part, or any right or interest in this Agreement, without the other Party’s prior written consent, not to be unreasonably withheld, and any purported assignment will be void. However, either Party may assign this Agreement without consent to an Affiliate, or in connection with a merger, consolidation, or corporate reorganization, sale of all or substantially all of its assets or business, or other change of control transaction. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Assignment will not relieve Client of its obligation to pay Fees incurred before the assignment.
9. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10. Entire Agreement; Order of Precedence. This Agreement (together with any SOWs, Orders, and linked terms) contains the entire understanding and agreement of the Parties concerning the subject matter of this Agreement and supersedes all prior or contemporaneous communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter. This Agreement may only be amended or waived by a writing signed by both Parties; however, the Parties may update and modify this Agreement upon renewal. In the event of any conflict or inconsistency between or among the following documents, the order of precedence will be: (1) the DPA, (2) the Order, (3) SOW, (4) this Agreement, and (5) any links provided in this Agreement. Any amendment will take precedence over the document it amends.
11. Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. The English language version of this Agreement will be the version used when interpreting or construing this Agreement. Any notices in connection with this Agreement must be provided in English. Either Party’s failure to enforce any right under this Agreement will not waive that right. There are no third-party beneficiaries to this Agreement, and Client acknowledges that Decidr will have no obligations or liability whatsoever to any third parties with which Client does business.
DEFINITIONS
1. “Affiliate” means an entity that controls, is controlled by, or is under common control of a Party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity.
2. “Authorised User” means any individual or agent Authorised by Client to access or use the Services.
3. “Client Data” means any content, data, information, Personal Data (as described in Clause 1.3), and other materials submitted by Client or an Authorised User to the Subscription Services (“Input”) and data the Client will receive from the Subscription Services (“Output”). Client Data excludes Statistical Usage Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction, or other feedback relating to the operation of the Subscription Services pursuant to Clause 5.4.
4. “CPI” means the Consumer Price Index (All Groups) (weighted average of eight capital cities) published by the Australian Bureau of Statistics, or any similar index that replaces it, or any alternative pricing index as specified in an Order.
5. “Documentation” means the official Decidr-provided user guides and functional specifications applicable to the Services, including the Decidr Fair Usage Policy and Acceptable Use Policy, whether in electronic, paper, or equivalent form, as updated from time to time, as provided by Decidr to Client or set out in or attached to an Order or accessible at websites designated by Decidr.
6. “Export Control and Sanctions Laws and Regulations” means all laws and regulations under applicable law controlling or regulating the export, re-export, or (in-country) transfer of goods, technology, software, or services, or those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities.
7. “Harmful Code” means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.
8. "Intellectual Property Rights” means all rights, title, and interest in all intellectual property, including patents, copyrights, trade secrets, mask works, trademarks, and other intellectual property rights of any sort throughout the world.
9. “Order” means a written or electronic order form, executed by the Parties, identifying the Services, scope, quantity, charges, and other information relevant to a specific transaction between Client and Decidr, incorporated by reference to this Agreement.
10. “Professional Services” means the implementation, technical, customisation, consulting, training, and similar services provided by or through Decidr or its Affiliates, as described in the relevant Order or SOW.
11. “Reseller” means a third party Authorised by Decidr or its Affiliates to promote, distribute, and/or resell the Services.
12. “Services” means collectively, as applicable, the Subscription Services, and Professional Services Client has ordered, and Decidr has agreed to provide, as indicated on the applicable Order or SOW.
13. “SOW” means a statement of work executed by the Parties describing Professional Services purchased by Client pursuant to an Order, incorporated by reference in this Agreement.
14. “Statistical Usage Data” means usage information or data related to the access or use of the Services. Examples of Statistical Usage Data include information or data on user visits, user activity, project activity, and numbers and types of clicks or impressions, as well as statistical, functional, behavioral, or other information or data based on or derived from such access or use.
15. “Subscription Services” means the Decidr ai services, including Decidr’s offerings as software-as-a-service, and all associated Updates, offered on a subscription basis by Decidr via an Order that provides the functionality described in the Documentation.
16. “Subscription Services Platform” means the collectively, the online, web based applications, portal and platform provided by Decidr, its Affiliates or third party providers, and used for the provision of the Subscription Services as ordered by Client for use by Authorised Users pursuant to this Agreement and as specified in one or more Orders.
17. “Subscription Term” means the period during which Client is entitled to use the Subscription Services, as set out in an Order.
18. “Updates” means all updates, enhancements, and other modifications that Decidr makes generally available, at no additional charge, to its Clients of the Subscription Services identified in an Order.
19. “Usage Metrics” means the metrics used (including any limits on use or units of measure or consumption), if any, to determine the scope of Client’s access and use of the Subscription Services and associated Fees, as set out in an Order.