Decisionly Terms of Service

Last updated: October 14, 2024

These Terms of Service (the "Agreement") constitute a binding legal agreement between Decisionly, Inc. ("Decisionly") and the Decisionly customer (either an individual or an entity) using Decisionly's online dispute automation service for payment card issuers ("Company"). Decisionly and Company will each be referred to as a "Party" and together, the "Parties".

By registering for an account on the Services, or otherwise using the Services, Company agrees to be bound by this Agreement and to use the Services in compliance with this Agreement. Despite the foregoing, if Company has entered into a previously executed and still valid SaaS Agreement with Decisionly, the terms and conditions of that SaaS Agreement will control with respect to any conflicts between this Agreement and the SaaS Agreement.

Decisionly may make changes to this Agreement from time to time. If Decisionly makes any material changes, it will notify Company by sending Company an email to the last email address Company provided to Decisionly (if any) and/or by prominently posting notice of the changes on the Decisionly Platform. Any changes to this Agreement will be effective upon the earlier of thirty calendar days following Decisionly's dispatch of an e-mail notice to Company (if applicable) or thirty calendar days following Decisionly's posting of notice of the changes on the Decisionly Platform. Any such changes will be effective immediately for new users of our Services. Users of our Services are responsible for providing Decisionly with their most current email address. In the event that the last email address that Company has provided to Decisionly is not valid, or for any reason is not capable of delivering to Company the notice described above, Decisionly's dispatch of the email containing that notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following any such notice of changes will indicate Company's acknowledgement of the changes and Company's agreement to be bound by those changes.

For good and valuable consideration, the adequacy, receipt and sufficiency of which are acknowledged, Company and Decisionly agree as follows:

1. Definitions

As used in this Agreement, each of the following terms will have the meanings attributed to them as follows:

"Affiliate" means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with that Party; and "control" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.

"Aggregate Data" means all aggregate and statistical information or analyses collected by Decisionly relating to Company's use of the Services.

"Authorized User" means Company's employees and the employees of Company's subcontractors that have been assigned a unique username-password combination to access and use the Services.

"Company Content" means any non-public content or information that Company, Company's subcontractors or their respective Authorized Users upload into the Decisionly Platform or otherwise make available to Decisionly in connection with the Services, including payment card dispute documentation; provided, however, that Company Content will not include any Generated Content.

"Company Property" means: (a) Company Content; and (b) Company's Confidential Information.

"Confidential Information" means all technical, business, financial and other information of a Party that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, business plans and financial information of that Party. The Confidential Information of Decisionly includes, without limitation, the Decisionly Property and any pricing and Fee information set forth in any Order. Company's Confidential Information includes, without limitation, Company Content. Confidential Information does not include information that the receiving Party can document: (i) has entered the public domain through a source other than the receiving Party and through no fault of the receiving Party; (ii) was rightfully known to the receiving Party without a confidentiality obligation prior to the commencement of the Services; (iii) is disclosed to the receiving Party by a third party that has no confidentiality obligation; or (iv) is developed by the receiving Party independently of and without reference to any Confidential Information.

"Decisionly API" means Decisionly's proprietary application program interface and associated services, if any, through which Company may access the Decisionly Platform.

"Decisionly API Materials" means documentation, code, and other materials, if any, that Decisionly provides or makes available to Company relating to use of the Decisionly Platform and/or Decisionly API.

"Decisionly Platform" means Decisionly's proprietary, cloud-based software platform that allows Authorized Users, among other things, to upload and store Company Content and generate, view, download and distribute Generated Content.

"Decisionly Property" means: (a) the Decisionly Platform; (b) the Decisionly API and Decisionly API Materials; (c) any user documentation and training materials provided by Decisionly; (d) any deliverables, software, applications, inventions or other technology developed and/or provided by Decisionly in connection with any Services; (e) any Confidential Information of Decisionly; (f) Generated Content; (g) Aggregate Data; and (h) any improvements, enhancements, modifications and/or derivative works of any of the foregoing.

"Fees" means the Decisionly fees for the Services, as set forth in each Order.

"Generated Content" means any content or data generated by the Decisionly Platform through the analysis of Company Content, including without limitation any payment card dispute and chargeback documentation that is submitted to payment card networks (e.g. Visa, Mastercard) and content that the Decisionly Platform generates and provides to Company.

"Intellectual Property Rights" means patent rights (including patent applications and invention disclosures), design rights, copyrights, rights in database, moral rights, trademarks, service marks, trade secrets, know-how, rights in or relating to confidential information and any other intellectual property right (whether registered or unregistered) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded including all rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.

"Order" means a written order for subscription to the Services that Company accepts online or mutually executes with Decisionly.

"Services" means: (a) the Decisionly Property; (b) support and maintenance services to be provided by Decisionly pursuant to Section 2.4; and/or (c) any other services performed by Decisionly under this Agreement.

"Term" has the meaning set forth in Section 10.1.

"Third-Party Materials" means any third-party code, model, algorithm or content used with the Services that is provided under separate license agreement with the applicable third-party licensor, including any AI models and open-source software.

"Upgrades" means any upgrades, updates, revisions, corrections, modifications improvements, bug fixes, patches, maintenance releases, versions, and enhancements to the Decisionly Platform that Decisionly makes generally available to its customers at no additional charge during the Term, excluding any beta versions thereof.

2. Services

2.1 Provision of Services.

Decisionly will host and provide to Company the Decisionly Platform and/or other Services in accordance with this Agreement and each Order. Unless otherwise agreed in an Order, the Decisionly Platform will be deemed delivered to Company when Decisionly gives Company Internet access to the Decisionly Platform. Delivery of the Services is without regard to when Company actually first uses the Services. If Company requests additional services outside the scope of the Services as stated in the initial Order, the Parties will mutually agree upon the scope and terms of those additional services in a subsequent Order, and the services described in the Order will become part of the Services. An Order may be modified only by a written, mutually executed amendment. Decisionly's personnel performing the Services may be either Decisionly employees or subcontractor personnel. Decisionly will be responsible for any acts or omissions of Decisionly's employees or subcontractors that cause Decisionly to be in breach of this Agreement. Decisionly will provide Company with any Decisionly API Materials necessary for Company to access the Decisionly Platform via the Decisionly API. Company agrees to cooperate reasonably with Decisionly's efforts to provide the Services, and Decisionly will not be responsible for any delays in providing the Services to the extent caused by Company's failure to cooperate with Decisionly.

2.2 Company's Account and Authorized Users.

Decisionly will establish in the Decisionly Platform any necessary accounts for the number of Authorized Users, and Company will have the ability to provision accounts for their Authorized Users. For the avoidance of doubt, login credentials will be associated with named Authorized Users, and Company will not allow Company's subcontractors to use the Services in connection with providing services to any third party. In the event Company desires to transfer an Authorized User login to a new employee or subcontractor, Decisionly will assist Company with that transfer. Authorized Users of the Decisionly Platform will have the ability to use the Decisionly Platform to upload Company Content; review, export and distribute Generated Content; manage Company's account; and otherwise use the functionalities described in the user documentation for the Decisionly Platform that Decisionly makes available to Company. Company agrees to keep Company's account credentials for the Decisionly Platform confidential and not to share them with any third party other than Authorized Users. Company is fully responsible for all activities that occur under Company's account and for maintaining up-to-date and accurate information (including without limitation valid contact information) with respect to Company's account. If Company provides any information that is inaccurate or incomplete, or Decisionly has reason to believe that the information is inaccurate or incomplete, Decisionly may suspend Company's account and use of the Services. Company will be responsible for maintaining the security of Company's account, passwords (including but not limited to administrative and Authorized User passwords) and files, and for all uses of Company's account with or without Company's knowledge or consent, to the extent that use was not due to an action or inaction of Decisionly. Company further agrees to cooperate with Decisionly in establishing a password or other procedures for verifying that only Authorized Users have access to any administrative functions of the Decisionly Platform. Company will require Authorized Users to maintain proper password security, and to maintain the confidentiality of Company's account. Company is responsible for the actions of Authorized Users and anyone accessing the Decisionly Platform using the credentials of any Authorized User.

2.3 Ability to Download Data.

At any time during Company's subscription period and for a period of twelve (12) months after the subscription period ("Retention Period"), upon the written request of Company, Decisionly will provide to Company a copy of any Company Content and/or Generated Content then stored in the Decisionly Platform, in a format supported by the Decisionly Platform. Company will not have the ability to obtain Company Content or Generated Content after the Retention Period, and after the Retention Period Decisionly will have the right to delete any Company Content or Generated Content in its sole discretion.

2.4 Maintenance and Support.

Decisionly will use commercially reasonable efforts to keep the Decisionly Platform operational throughout the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance. Decisionly will provide reasonable support to Company during Decisionly's normal business hours for technical support issues relating to the Decisionly Platform. At Decisionly's sole discretion, Decisionly will make Upgrades available to Company when generally available and at no additional charge. For the avoidance of doubt, Decisionly reserves the right to offer certain enhancements and optional services for the Decisionly Platform for an additional charge, in Decisionly's sole discretion. Company will have sole responsibility for the computers, mobile devices and networks Company uses to access the Decisionly Platform.

2.5 Changes to the Services.

Decisionly reserves the right to withdraw or modify the Services in its sole discretion without notice.

2.6 Additional Policies.

Certain features of the Services may require Company to agree to additional guidelines, terms and/or conditions ("Policies"). All such Policies are incorporated by reference into this Agreement. If this Agreement is inconsistent with any Policy, the terms in the Policy will control to the extent of the inconsistency.

2.7 Third-Party Web Content.

The Services may contain links to Web pages and content of third parties that are not hosted by Decisionly ("Third-Party Web Content") as a service to those interested in this information. Decisionly does not monitor, endorse, or adopt, or have any control over, any Third-Party Web Content. Decisionly has no responsibility to update or review any Third Party Web Content and can make no guarantee as to its accuracy or completeness.

Additionally, if Company follows a link or otherwise navigates away from the Services, this Agreement will no longer govern. Company should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Web Content provider to which Company navigates from the Services. Company's access and use Third-Party Web Content is at Company's own risk.

The Services may contain advertisements and promotions from third parties. Company's business dealings or correspondence with, or participation in promotions of, advertisers other than Decisionly, and any terms, conditions, warranties, or representations associated with such dealings, are solely between Company and such third party.

3. Licenses

3.1 Licenses to Decisionly Property.

Subject to the terms and conditions of this Agreement, Decisionly hereby grants to Company a non-exclusive, non-sublicensable (except as expressly permitted under this Agreement), non-transferable (except as expressly permitted under this Agreement) revocable license, during the subscription period set forth in each Order, to access and use the Decisionly Platform, Generated Content, user documentation and training materials (if provided by Decisionly), Decisionly API and the Decisionly API Materials solely for Company's internal use as further described in Section 2.2. Company may permit Authorized Users to exercise the rights set forth in the preceding sentence, provided that: (i) any Authorized Users who are subcontractors must only exercise those rights in the course of performing services for Company; and (ii) Company will ensure that all Authorized Users comply with this Agreement and Company will be liable for any breach of this Agreement caused by any Authorized Users.

3.2 Restrictions on Use of Decisionly Property.

Company will not attempt to interfere with or disrupt any of the Decisionly Property. Company will not upload any complete payment card number, sometimes referred to as the primary account number ("PAN"), to the Decisionly Platform or otherwise provide any PAN to Decisionly. Except as expressly authorized under the Agreement, Company will not, and will not allow any Authorized User or other third party to: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Decisionly Property; (b) work around any technical limitations in the Decisionly Property, or use any tool to enable features or functionality that are otherwise disabled in the Decisionly Property; (c) perform or attempt to perform any actions that would interfere with the proper working of the Decisionly Property, or prevent access to or use of the Decisionly Property by Decisionly's other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (d) access or attempt to access any accounts or data on the Decisionly Property, other than those explicitly belonging to Company or provided by Decisionly for Company's use; (e) make the Decisionly Property available to, or use the Decisionly Property for the benefit of, anyone other than Company or its customers; (f) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Decisionly Property, or use the Decisionly Property in a service bureau or outsourcing offering; (g) copy the Decisionly Property or any part, feature, function or user interface thereof; (h) access or use the Decisionly Property to perform a competitive analysis or to build a competitive product or service; (i) use the Decisionly Property in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); (j) permit direct or indirect access to or use of the Decisionly Property in a way that circumvents any contractual usage limit; (k) use web scraping, web harvesting, or web data extraction methods to extract data from Decisionly's software, models or systems; (l) use the Decisionly Property for any purpose other than Company's own internal business use or other than in accordance with this Agreement and the Order and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning export, intellectual property, consumer and child protection, obscenity or defamation); (m) upload to the Decisionly Property, or use the Decisionly Property in connection with, any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device; (n) use any of the Decisionly Property for marketing purposes, or publicly disseminate any review or analysis of the Decisionly Property or its performance; or (o) remove, alter or obscure any of Decisionly's (or its licensors') disclaimers, copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Decisionly's (or its licensors') ownership or contribution from the Decisionly Property or any copies Company is permitted to make of the Decisionly Property.

3.3 License to Company Content.

Subject to the terms and conditions of this Agreement, Company hereby grants Decisionly an non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), non-sublicensable (except as expressly permitted below in this section), worldwide license to Process (defined below) any Company Content (including without limitation any header data or metadata included in Company Content): (a) during the applicable subscription period, to provide the Services to Company; and (b) on an irrevocable, perpetual basis, for developing, improving, enhancing and providing products and services, and testing, diagnostics and troubleshooting. Decisionly will have the right to permit it subcontractors to exercise the foregoing rights and to permit third-party sublicensees to exercise the rights granted in subsection (b). Decisionly will not, however, Process any Company Content for purposes of cookie tracking, ad exchanges, data brokerages, ad networks, or sending electronic communications (including email) in violation of applicable law. "Process" means to use, reproduce, modify, adapt, publish, distribute, translate, publicly display and perform, prepare derivative works of, incorporate into other works, disclose, and otherwise use, in whole or in part, and to incorporate into other works in any format or medium now known or later developed.

4. Proprietary Rights

4.1 Decisionly Property.

Except for the limited license granted in this Agreement, as between the Parties, all right, title, and interest in and to any Decisionly Property, including without limitation any associated Intellectual Property Rights, are and will remain the exclusive property of Decisionly and its licensors. Decisionly reserves all rights in and to all the Decisionly Property and nothing contained in this Agreement will be construed as conveying any right or license in any Decisionly Property, by implication, estoppel, or otherwise. This Agreement does not authorize a sale of, and does not convey to Company any rights of ownership or any other Intellectual Property Rights in or related to, the Decisionly Property. All trademarks, logos and service marks ("Trademarks") displayed on or in the Decisionly Property are the property of Decisionly or of other third parties. Company is not permitted to use these Trademarks without Decisionly's prior written consent or the consent of the third party that owns the Trademarks.

4.2 Use of Aggregate Data.

Company understands and agrees that Decisionly owns the Aggregate Data and will have the right to collect and use that data for product development and for other commercial purposes in its sole discretion; provided, however, that Decisionly will only share Aggregate Data with third parties if that data is aggregated with data of other Decisionly customers and is deidentified, such that it cannot be used to identify Company or any Authorized User.

4.3 Company Property.

Except for the limited license granted in this Agreement, as between the Parties, all right, title, and interest in and to any Company Property, including without limitation any associated Intellectual Property Rights, are and will remain the exclusive property of Company and Company's licensors.

4.4 Responsibility for Company Content.

Company is responsible for all Company Content, including for the accuracy, legality and integrity of that content, and Company must obtain in advance all consents, approvals, licenses, and permissions necessary to collect and upload Company Content to the Services. Company must not upload to the Services, or permit any third party to upload, any content that violates third-party privacy, publicity, intellectual property or contractual rights; violates applicable laws, regulations or industry standards; pertains to any person under 13 years of age; or contains hate speech or material that is violent, obscene, pornographic, abusive, defamatory, offensive, or otherwise not reasonably related to the Services. Without limiting any of Decisionly's other rights and remedies, Decisionly will have the right (but not the obligation) in its sole discretion to remove from the Services any such content that violates this Agreement or any of Decisionly's policies and procedures, or is otherwise objectionable. COMPANY MUST NOT CAUSE TO BE UPLOADED TO THE SERVICES ANY CONTENT THAT IS INACCURATE OR FOR WHICH COMPANY DOES NOT HAVE ALL NECESSARY OWNERSHIP RIGHTS AND/OR LICENSES, CONSENTS OR PERMISSIONS. Decisionly's provision of the Services is conditioned upon its receipt of correct and accurate Company Content from Company. Decisionly has no obligation to back up any Company Content. Company is solely responsible for creating backup copies of Company Content.

4.5 Feedback.

Company hereby assigns to Decisionly all right, title and interest, including all associated Intellectual Property rights, in and to any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Company or any Authorized User relating to the Decisionly Property. Accordingly, Decisionly will have the unrestricted right to use any Feedback, including to improve the Services and create other products and services. Decisionly will treat any Feedback that Company provides to Decisionly as non-confidential and non-proprietary. Company will not submit to Decisionly any Feedback that Company considers to be confidential or proprietary.

5. Payment Obligations

5.1 Fees and Payment.

Company will pay Decisionly the Fees set forth in each Order. Decisionly may modify the Fees from time to time upon notice to Company, provided that any such modification will apply at beginning of the next renewal subscription period. Decisionly will invoice Company at the beginning of each calendar month during the applicable subscription period, and Company will pay each invoice within thirty (30) days of receipt of an undisputed invoice. In the event of early termination of this Agreement, Company will pay any Fees then accrued and payable for Services performed through the effective date of termination. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable. All amounts billed to Company will be expressed in, and Company will make all payments in, United States dollars. If Company believes that Decisionly has billed Company incorrectly, Company must contact Decisionly no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Decisionly's customer support department (support@decisionly.com). Company will pay all amounts due without any set-off, counterclaim, deduction or withholding. Decisionly may, at its option, apply money Company owes to Decisionly against any money that Decisionly then owes to Company. Decisionly and Company will use good faith efforts to resolve any disputed invoiced amounts or charges.

5.2 Taxes.

All invoices will include any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon Fees charged, or upon this Agreement. Company will pay any taxes related to Services purchased or licensed pursuant to this Agreement, including, but not limited to, value added and withholding taxes, or Customer will present an exemption certificate acceptable to the taxing authorities.

5.3 Remedies for Non-Payment.

In addition to any other remedies available to Decisionly, including any remedies set forth in the applicable Order, in the event that Company fails to pay any invoiced amounts when due: (a) Decisionly will have the right to immediately suspend or block Company's access to the Services until full payment of those amounts is received; and (b) Company will pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and that charge will accrue beginning on the day after the amount is due.

6. Confidentiality, Data Security and Data Privacy

6.1 Confidentiality.

The Party receiving Confidential Information agrees: (a) to hold and maintain in strict confidence the Confidential Information and not to disclose it to any third party other than its employees and subcontractors who have a need to know and have executed confidentiality agreements with the receiving Party no less protective of the Confidential Information than this Section; (b) to protect the Confidential Information from disclosure with the same degree of care it uses to protect its own proprietary information similar in nature, but in no event less than a reasonable degree of care; (c) not to use any Confidential Information for any purpose other performing its obligation or exercising its rights under this Agreement; and (d) to return or destroy Confidential Information promptly upon the disclosing Party's written request. For clarity, nothing in this Section 6 will restrict or limit Decisionly's rights to retain or use Company Content as provided in Section 3.3. Either Party may disclose Confidential Information in response to a valid order of a court or other governmental body, or as required under applicable law; provided, however, that the receiving Party agrees to immediately inform the disclosing Party in writing of the existence, terms, and circumstances surrounding the request, order or law, and the receiving Party will only disclose that portion of the Confidential Information that it is legally obligated to disclose upon advice of its legal counsel. The receiving Party acknowledges that the unauthorized disclosure or use of Confidential Information may cause irreparable harm to the disclosing Party, which harm cannot be compensated by damages alone. Therefore, in addition to all other rights and remedies at law and in equity, the disclosing Party may seek an injunction to prevent a violation of the obligations of confidentiality.

6.2 Disclosure of this Agreement.

Both Parties will have the right to disclose the existence of the relationship between the Parties, but not the terms and conditions of this Agreement, unless a disclosure of this Agreement is approved in writing by both Parties prior to the disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided that Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to attorneys, accountants or other professional advisors, or to potential investors or acquirers.

6.3 Data Privacy.

The Parties will each comply with all applicable privacy laws and regulations relating to the protection of personal data. The Decisionly Privacy Policy, available at decisionly.com/privacy, is incorporated into this Agreement by reference. Company will not upload any complete payment card number, sometimes referred to as the primary account number ("PAN"), to the Decisionly Platform or otherwise provide any PAN to Decisionly. Company agrees to supply to Decisionly any information or data that Decisionly reasonably requires to perform the Services, including but not limited to cardholders' names, mailing addresses, email addresses, date and amount of relevant purchase(s)), and the last four digits of the payment card number; provided, however, that Company will not upload or otherwise provide to Decisionly any other personally identifiable information regulated under relevant law, including but not limited to any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4). Company will not transfer or otherwise make available to Decisionly any other personal data or personally identifiable information (as those terms are defined in applicable privacy laws and regulations) unless Company has obtained a valid consent from the relevant data subject in accordance with the terms of applicable privacy laws and regulations that permits the transfer and the use by Decisionly and its subcontractors of that personal data or personally identifiable information as authorized under this Agreement. Company hereby consents to Decisionly's use of any Business Card Data that Company provides to Decisionly: (a) for the purpose of performing Decisionly's obligations under these Terms; and (b) in any additional manner described in Decisionly's Privacy Policy governing the Services. "Business Card Data" means any business contact information of Authorized Users, Company's employees or Company's subcontractors (i.e., name, title, company/organization, business email, business phone number, and business address).

6.4 Data Security.

To prevent unauthorized use or disclosure of Company Property stored in the Services, Decisionly will comply with its obligations under Decisionly's data security program described in Decisionly's Privacy Policy. For the avoidance of doubt, Company (not Decisionly) bears sole responsibility for adequate security, protection and backup of Company Content and Generated Content when in Company's possession or control or in the possession or control of Company's Authorized Users, representatives, agents or clients. Company and Authorized Users have and will retain sole responsibility for Company's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services. Decisionly will have the right to suspend Company's access to the Services on an emergency basis: (a) in the event that Decisionly detects any actual or apparent theft, unauthorized access or use of the Services, or other malicious activity by Company or any third party; and/or (b) to maintain data integrity within the Services.

6.5 HIPAA Compliance.

Company acknowledges that Decisionly is not a Business Associate or subcontractor (as those terms are defined in the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder ("HIPAA")), and Company is solely responsible for complying with any obligations under HIPAA. Accordingly, Company must avoid transmitting to Decisionly or the Services any "protected health information" as defined in 45 CFR §160.103. Decisionly will have no liability to Company for any unauthorized access to, or use, corruption or loss of any personal health information that may be contained in the Company Content or Generated Content.

7. Representations And Warranties; Disclaimer

7.1 Representations and Warranties.

Each Party represents and warrants as of the Effective Date and at all times throughout the Term: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by that Party and performance of its obligations hereunder comply with all applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of that Party, enforceable against it in accordance with its terms; and (d) neither the execution nor performance of this Agreement will violate any agreement to which it is a party or by which it is otherwise bound. Decisionly further represents and warrants to Company that Decisionly will perform all Services in a professional manner with qualified personnel in accordance with industry standards generally accepted in Decisionly's industry; provided that, as Decisionly's sole obligation for any breach of that warranty, Decisionly will promptly reperform the Services in a manner that corrects the breach. Company further represents and warrants to Decisionly throughout the Term that: (i) all Company Content that Company provides under this Agreement is accurate and complete; (ii) Company has all consents, approvals, licenses, and permissions necessary for Company to perform all of Company's obligations under this Agreement, to provide Company Content to the Services, and to grant the licenses Company has granted in this Agreement; and (iii) Company Content does not violate any applicable laws, including without limitation any privacy laws, and does not infringe or misappropriate any Intellectual Property Right, publicity or privacy right or other proprietary right of any third party.

7.2 Warranty Disclaimer.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. DECISIONLY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET COMPANY'S NEEDS OR REQUIREMENTS, THAT ANY GENERATED CONTENT WILL BE ACCURATE, COMPLETE, RELIABLE, LEGAL, SAFE, FREE FROM VIRUSES OR OTHER HARMFUL CONTENT, OR COMPLY WITH APPLICABLE LAWS OR REGULATIONS, THAT USE OF THE GENERATED CONTENT WILL PRODUCE SPECIFIC RESULTS, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT COMPANY OBTAINS FROM THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND COMPANY MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, THE DURATION AND SCOPE OF THAT WARRANTY WILL BE THE MINIMUM POSSIBLE UNDER SUCH APPLICABLE LAW.

8. Indemnification

8.1 Decisionly Indemnification.

Decisionly, at its own expense, will indemnify, defend and hold harmless Company, Company's Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the "Company Indemnitees") from and against any claim, demand, action, class action, investigation or other proceeding ("Claims"), including but not limited to all damages, losses, liabilities, penalties, fines, judgments, costs and expenses (including attorneys' fees) arising therefrom ("Losses"), brought by any third party against any of Company Indemnitees to the extent that Claim is based on, or arises out of: (a) any third-party allegation that the Services (excluding any of Company Content and Generated Content hosted in the Service), when used by Company in accordance with this Agreement, violate applicable law or infringe or violate any worldwide copyright or trademark or U.S. patent of any third party; or (b) the fraud, gross negligence or willful misconduct of Decisionly or its employees or subcontractors. The obligations of Decisionly set forth in this Section 8.1 and Section 8.2 will not apply to any Claim resulting from: (i) Company Content, Generated Content or any payment card dispute case that Company or an Authorized User creates using the Services (ii) Third-Party Materials; (iii) any violation of Company's obligations, representations and/or warranties in this Agreement; or (iv) the combination of the Services with any third-party service, product or content, where the Services alone would not have violated applicable law or the rights of any third party.

8.2 Additional Obligations of Decisionly.

In addition to the indemnification obligations of Decisionly set forth in Section 8.1 above, in the event the use of any Service is, or Decisionly believes is likely to be, alleged or held to infringe any Intellectual Property Right, Decisionly may at its sole option and expense: (a) replace or modify the Service so it is non-infringing (provided, that the replaced or modified Service is substantially equivalent); (b) obtain for Company a license to continue using the Service in accordance with this Agreement; or (c) terminate the applicable Order and refund to Company the pro-rata amount of any unused Fees prepaid by Company under that Order. COMPANY AGREES THAT SECTION 8.1 AND THIS SECTION 8.2 SET FORTH COMPANY'S EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIM THAT THE DECISIONLY PROPERTY INFRINGES ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.

8.3 Company's Indemnification.

Company, at Company's own expense, will indemnify, defend and hold harmless Decisionly, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the "Decisionly Indemnitees") from and against any Claim, including but not limited to any Losses arising therefrom, brought by any third party against any Decisionly Indemnitee to the extent that Claim is based on, or arises out of: (a) Company's business or any payment card dispute case that Company or an Authorized User creates using the Services; (b) Company Content or Generated Content; (c) any breach or purported breach of Company's obligations, representations and/or warranties under this Agreement; or (d) the fraud, gross negligence or willful misconduct of Company, Authorized Users or Company's employees or subcontractors.

8.4 Indemnification Procedures.

The obligations of each Party (the "Indemnitor") under this Agreement to defend, indemnify and hold harmless the other Party and its Affiliates, and their respective directors, officers, employees, representatives and agents (each, an "Indemnitee") will be subject to the following: (a) the Indemnitee will provide the Indemnitor with prompt notice of the claim giving rise to the obligation; provided, however, that any failure or delay in giving notice will only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor will have sole control of the defense and of all negotiations for settlement of the claim or suit; provided, however, that the Indemnitor will not settle any claim unless the settlement completely and forever releases the Indemnitee from all liability with respect to the claim or unless the Indemnitee consents to the settlement in writing (which consent will not be unreasonably withheld); and (c) the Indemnitee will cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee will be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.

9. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER DECISIONLY, NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES; OR (B) ANY LOST PROFITS, LOST REVENUES, LOST DATA OR COST OF REPLACEMENT SERVICES, WHETHER CHARACTERIZED AS DIRECT OR INDIRECT DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF DECISIONLY, ITS AFFILIATES, SUPPLIERS AND ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO DECISIONLY UNDER THE RELEVANT ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

WITHOUT LIMITING THE GENERALITY OF FOREGOING, IN NO EVENT WILL DECISIONLY HAVE ANY LIABILITY OR OBLIGATION, INCLUDING FOR ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ARISING OUT OF: (I) ANY THIRD PARTY MATERIALS; (II) THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY GENERATED CONTENT, INCLUDING WITHOUT LIMITATION ANY GENERATED CONTENT RESULTING FROM INACCURATE, INCOMPLETE OR FRAUDULENT COMPANY CONTENT; (III) THE COMPLIANCE OF ANY GENERATED CONTENT WITH APPLICABLE LAWS OR REGULATIONS; (IV) ANY MODIFICATIONS TO GENERATED CONTENT MADE BY ANY PARTY OTHER THAN DECISIONLY; OR (V) ANY USE OF ANY GENERATED CONTENT OR ANY RESULTS OBTAINED FROM THAT USE. THE SERVICES, INCLUDING THE GENERATED CONTENT, ARE TOOLS AND ARE INTENDED ONLY TO ASSIST COMPANY WITH COMPANY'S WORK, AND THE SERVICES AND GENERATED CONTENT ARE NOT A SUBSTITUTE FOR COMPANY'S PROFESSIONAL JUDGMENT OR INDEPENDENT ANALYSIS. IT IS COMPANY'S RESPONSIBILITY TO DETERMINE WHETHER THE USE OF GENERATED CONTENT IS APPROPRIATE FOR COMPANY'S PURPOSES. COMPANY IS RESPONSIBLE FOR ESTABLISHING ADEQUATE, INDEPENDENT PROCEDURES FOR VERIFYING THE RELIABILITY, ACCURACY, COMPLETENESS, COMPLIANCE WITH APPLICABLE LEGAL REQUIREMENTS, AND OTHER CHARACTERISTICS OF ANY GENERATED CONTENT. COMPANY ACKNOWLEDGES AND AGREES THAT THE SERVICES AND GENERATED CONTENT MAY NOT ACHIEVE THE RESULTS THAT COMPANY OR ITS CLIENT DESIRES.

COMPANY ACKNOWLEDGES THAT THE NATURE OF INTERNET-BASED SERVICE DELIVERY IS SUCH THAT CONFIDENTIALITY, SECURITY AND PERFORMANCE CANNOT BE COMPLETELY ASSURED. DECISIONLY WILL HAVE NO LIABILITY TO COMPANY FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF COMPANY CONTENT OR GENERATED CONTENT.

THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO SOME OF THE PRECEDING EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO COMPANY.

10. Term and Termination.

10.1 Term.

This Agreement becomes a legally binding contract and is effective as of the earliest date Company does any of the following (the "Effective Date"): creates an account on the Decisionly Platform; accepts this Agreement online; or begins using the any portion of the Services. The term of this Agreement will continue in full force and effect during all subscription periods under the Order ("Term"). The Order will automatically renew for successive renewal subscription periods that are equal in length to the original subscription period, unless either Party notifies the other in writing, at least thirty (30) days prior to the end of the then-current subscription period, as applicable, that Company does not wish to renew the Order.

10.2 Termination for Cause.

Either Party may terminate this Agreement by written notice to the other Party if the other Party commits a material breach of this Agreement and the breach remains uncured for thirty (30) days following written notice of breach by the terminating Party; provided, however, that Decisionly may immediately terminate the Agreement without refund, upon written notice to Company, in the event that: (a) Company violates Section 3.2; (b) Company fails to pay any amount owed under an Order within ten (10) days after the due date; (c) an applicable law or an applicable government or court order prohibits Decisionly's performance of any part of its obligations under this Agreement or any Order; (d) Decisionly determines that Company's use of the Services poses a threat to the secure or reliable provision of the Services to other customers, or to the Services infrastructure, or to the data contained in the Services; or (e) Decisionly generally discontinues the Services. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.3 Termination for Convenience.

Company may terminate its account and this Agreement for convenience upon sixty (60) days prior written notice to Decisionly, provided that in that event: (a) Company will not be entitled to any refund of fees paid; and (b) Company will remain liable to pay to Decisionly any current and future Fees and other costs that Company owes to Decisionly under this Agreement and any Order.

10.4 Effect of Expiration or Termination; Survival.

Upon the expiration or termination of this Agreement for any reason: (a) Company will immediately cease all access to and use of the Services; (b) all licenses granted hereunder will immediately terminate (except for any license expressly stated to be perpetual) and Decisionly will immediately cease providing Services to Company; (c) Company will, within thirty (30) days of expiration or termination, pay to Decisionly all outstanding accrued and payable amounts owed by Company to Decisionly under this Agreement; and (d) Sections 1, 3.2, 3.3, 4, 5.3, 6, 7.2, 8, 9, 10.4 and 11 will survive. Except in the event that Decisionly terminates this Agreement for Company's uncured material breach pursuant to Section 10.2 or Company terminates this Agreement for convenience under Section 10.3,, Decisionly will refund to Company any unused Fees that Company pre-paid for any period after the effective date of termination. Neither Party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement will not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination will not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a Party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with the termination.

11. Miscellaneous.

11.1 Notice to United States Government End Users.

If Company is the U.S. Government or if Company is a contractor or subcontractor (at any tier) of the U.S. Government and is accessing the Services for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, Company acknowledges that by using the Services and all associated software and technology of Decisionly qualify as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government's use of the Services and associated software and documentation, and will supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation.

11.2 Compliance with Law.

Company represents and warrants that: (a) Company is not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. Government embargo (currently, Crimea, Cuba, Iran, North Korea, Syria and Venezuela); and (b) Company is not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted. Company will not export, re-export, import, or transfer any good, service or other item that Company received from Decisionly or Company's right to access the Services in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and Company will not assist or facilitate others in doing any of the foregoing. Company acknowledges that it is Company's responsibility to comply with any and all applicable export and import and economic sanctions laws.

11.3 Force Majeure.

Decisionly will not be liable to Company for any default or delay in the performance of any of its obligations under this Agreement if the default or delay is caused, directly or indirectly, by any cause beyond Decisionly's reasonable control.

11.4 Assignment.

Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, without securing prior consent, either Party has the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of that Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party relating to the Agreement, provided that the Affiliate or successor agrees to be bound by the obligations of the assigning Party under this Agreement. This Agreement will be binding on, and will inure to the benefit of, the authorized successors and assigns of the Parties. Any attempt to assign other than in accordance with this provision will be null and void.

11.5 Independent Contractors.

The Parties acknowledge that the relationship of Company and Decisionly is that of independent contractors and that nothing contained in this Agreement will be construed to place Company and Decisionly in the relationship of principal and agent, master and servant, partners or joint venturers.

11.6 Dispute Resolution.

If any dispute arises under this Agreement, each Party will submit the dispute for resolution by a level of employee or officer with decision-making authority. If the dispute cannot be resolved in thirty (30) days, either Party may pursue all available remedies at law or in equity.

11.7 Governing Law; Venue.

This Agreement will be interpreted in accordance with the laws of the State of New York, USA without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties under this Agreement will be conducted exclusively before the state and federal courts in and for New York County, New York, and the parties specifically consent to New York County, New York, USA, as the exclusive venue for any such proceeding. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.

11.8 Entire Agreement.

This Agreement, together with any attachments and Orders, embodies the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and understandings between the Parties relating to the subject matter of this Agreement. In the event of any conflict between the terms of any Order and this Agreement, the terms of the Order will govern. For avoidance of doubt, the Parties agree that no terms in any form purchase order, invoice, or other document that either Party may deliver, or imposed by any governmental acquisition regulation, whether or not signed by the other Party, will be deemed to modify or amend the terms of this Agreement and any additional or inconsistent terms will automatically be deemed unacceptable to and rejected by both Parties, and, as such, null and void and of no force and effect.

11.9 Amendment; Waiver.

Except as otherwise provided in the introductory section of this Agreement, no amendment of any provision of this Agreement will be effective unless set forth in a writing signed by a representative of Company and Decisionly, and then only to the extent specifically set forth in that writing. No course of dealing on the part of either Party, nor any failure or delay by either Party with respect to exercising any of its rights, powers or privileges under this Agreement or law will operate as a waiver of those rights, powers or privileges. No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances will be deemed a further or continuing waiver of the same or any other condition or provision.

11.10 Severability.

If any term of this Agreement or part of this Agreement not essential to the commercial purpose of this Agreement is held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms of this Agreement will constitute their agreement with respect to the subject matter of this Agreement, and all remaining terms, or parts of this Agreement will remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement will be replaced by a valid provision that will implement the commercial purpose of the illegal, invalid or unenforceable provision.

11.11 Marketing and Publicity.

Each Party is permitted to use the trademarks, service marks, trade names, logos, domain names or other indicia of source or affiliation or sponsorship (collectively, the "Marks"), where applicable, in connection with each Party's promotional and marketing obligations set forth herein; provided that all uses of a party's Marks shall be in accordance with such Party's trademark usage guidelines as may be provided to the other Party from time to time. As between the Parties, all Marks shall remain the sole property of the Party owning the Mark as of the Effective Date, and this Agreement shall not convey any right of ownership in either party's Marks. Either Party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. Company also agrees to allow Decisionly to utilize on its website a hyperlink to the main page of Company's website. Subject to the other Party's approval of any release, which approval will not be unreasonably withheld or delayed, the Parties agree to issue a joint press release within thirty (30) days of execution of this Agreement (or sooner if mutually agreed). Company agrees to provide an executive level quote for the press release. Company also agrees to be the subject of a customer testimonial or case study written by Decisionly, which will discuss Customer's use of the Services and may be published by Decisionly and used in sales, marketing, and press activities. Customer has the right to approve each such testimonial or case study in advance, provided that approval will not be unreasonably delayed or withheld. Notwithstanding anything to the contrary in this Section, neither Party may disclose the specific terms of this Agreement, except as required by applicable law.

11.12 Consent to Electronic Communications.

By using any portion of the Services, Company consents to receiving electronic communications from Decisionly. These communications may include notices about Company's account and information concerning or related to the Services. Company agrees that any notices, agreements, disclosures, or other communications that Decisionly sends to Company electronically will satisfy any legal communication requirements, including that such communications be in writing.

11.13 Notices; Disclosures.

Any notice required or permitted to be given by Decisionly under this Agreement must be in writing and delivered to the last email address Company provided to Decisionly (if any), by means of a service notice within Company's account, or via registered mail return receipt requested or an internationally recognized courier addressed to the address Company provided in connection with ordering any Services. Any notice required or permitted to be given by Company under this Agreement must be sent to Decisionly via registered mail return receipt requested or an internationally recognized courier to Decisionly, Inc., 169 Madison Ave., Suite 2994, New York, NY 10016, USA. Notices given by registered mail or courier will be deemed given when received, based on delivery records. Notices given by email or service notice will be deemed given when sent.

If Company has any questions or concerns about this Agreement or the Services, Company may contact Decisionly by email at support@decisionly.com. If Company is a California resident, Company may have this Agreement mailed to it electronically by sending a letter to the foregoing address with Company's electronic mail address and a request for this Agreement.

11.14 Headings.

The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.